What You Should Know About Citizens United v. Federal Election Commission
Citizens United v. Federal Election Commission is one of the most important and controversial Supreme Court cases in recent history. The case was decided back in 2010, but it resurfaced again during recent election coverage. Pundits and news anchors regularly mentioned the case when discussing campaign finance and spending. Yet despite so much coverage, many Americans still don’t know what the case was really about.
The Court’s ruling cannot be overstated---it essentially redefined protected “free speech”, and changed the way corporations are viewed. I don’t expect anyone to read the entire 183-page opinion, but at the very least, every American should have a basic understanding of the case. Here is what you need to know:
What were the facts of the case?
The plaintiff in the case was Citizens United (CU), a conservative nonprofit organization that receives donations from both private individuals and corporations. In 2008, CU wanted to air a documentary critical of Hilary Clinton who at the time was a candidate in the democratic party's Presidential primary elections. The film shed Clinton in a negative light and featured interviews with prominent republican figures such as Ann Coulter and Dick Morris.
The documentary and two ads promoting the film were to be televised within 30 days of the 2008 primary elections. The film could be viewed by cable subscribers for free as a video-on-demand, but the ads were aired on both broadcast and cable television.
Worried that televising the film and ads could constitute a violation of the federal ban on corporate spending for “electioneering communications”, CU filed suit to block the FEC from enforcing the ban and the disclosure/reporting requirements. CU asserted that the federal ban and disclosure requirements should not be applied to the Hilary movie because doing so would violate the First Amendment right to free speech. The Supreme Court ultimately struck down the federal ban but upheld (and applied) the disclosure and reporting requirements. The Court's rationale is described in more detail below.
What was the case about?
The case was about corporate spending on political speech. At issue was whether the government could limit corporate expenditures made to promote or denounce political candidates during elections.
At the time, the Bipartisan Campaign Reform Act of 2002 (BCRA) prohibited corporations and unions from using corporate funds for any publicly-distributed broadcast, cable, or satellite communication that referred to a candidate for Federal office, and which was distributed within 30-days of a primary election or within 60 days of general election (BCRA §203).The only corporations not subject to this federal ban were media corporations.
Federal law also required that anyone who spent $10,000 or more per year for such “electioneering communications” file a report with the FEC listing the names of every person who donated more than $1,000 to fund the communication (BCRA §201). In addition, if the organization was not authorized by a candidate, a disclosure was required stating that the organization was solely responsible for the content of the communication (BCRA §311).
- Whether the federal ban on corporate expenditures for political speech violated the First Amendment. (BCRA §203)
- Whether the federal disclosure, disclaimer, and reporting requirements applied to the advertising in question.(BCRA §201 and §311)
*The case did not address direct corporate contributions to campaigns or political parties. It only dealt with corporate spending on independent election ads and other forms of electioneering.
What did the Court decide?
The BCRA §203 ban on independent corporate expenditures for political speech is unconstitutional.
The Court ruled that the ban was unconstitutional and that any limit on, or prohibition of, corporate spending for political speech violated the First Amendment. Justice Kennedy, who wrote the majority opinion, argued that the First Amendment protects both individuals and associations of individuals, and that since a corporation is basically an association of individuals, it too has the right to free speech. Next, the Court held that the ban infringed on a corporation’s First Amendment rights because it:
- Constituted a prior restraint on speech: In order to avoid criminal liability threats and the heavy cost of an FEC lawsuit, speakers would be forced to ask a government agency for prior permission to speak, a practice that is prohibited by the First Amendment.
- Is an over-inclusive outright ban on free speech: The prohibition is “vast in its reach”, suppressing the speech of for-profits, non-profits, large corporations, and small corporations. Such suppression interferes with the “open marketplace of ideas protected by the First Amendment”.
- Restricted speech based on the speaker’s identity: The ban restricts speech based on the speaker’s corporate identity which results in the preferential treatment of wealthy individuals and exempt media corporations. There is really no difference between a wealthy individual and a corporation, and the fact that corporations have special advantages such as limited liability does not suffice to allow laws prohibiting speech. Also, allowing media corporations to make expenditures for political speech, while banning all other corporations from doing so is in direct violation of the First Amendment.
The BCRA §201 disclosure requirement & BCRA §311 disclaimer requirement are constitutional and apply to the Hilary film.
The Court upheld (and applied) the disclosure and disclaimer requirement. Justice Kennedy wrote that although disclosure and disclaimer requirements burden the ability to speak, they do not “impose a ceiling on campaign-related activities” nor do they “prevent anyone from speaking”. He argued that “disclosure can be justified by a governmental interest in providing the electorate with information about election-related spending sources” and that disclaimers “insure that the voters are fully informed about who is speaking”.
What is the significance of the case?
The case is significant because now corporations and unions can spend an unlimited amount of money to directly promote or denounce a political candidate through films, ads, or any other form of electioneering communication. Opponents of the ruling argue that permitting corporations to spend unlimited sums of money corrupts the election process since it gives corporate speakers a clear financial advantage in the political marketplace. Corporations can amass great wealth and may have influence over and access to elected officials—this will give rise to corruption, or at the very least, the appearance of corruption.
- Official Supreme Court Blog
Overview of the Citizens United case with a list of related documents and articles discussing the case.
- Maddow on Citizens United v. FEC - YouTube
Rachel Maddow discusses the history of corporate spending on political speech and the implications of the Citizens United ruling.
- NBC --- Hillary:The Movie to play in Supreme Court
Months after its debut, "Hillary: The Movie" faces nine of the nation's toughest critics: the Supreme Court.
- CNN --- Big money lost, but don't be relieved
CNN article about the effects of the Citizens United ruling in the recent elections.
- Library of Congress --- Future of Federal Campaign Finance Reform
Overview of the issues in Citizens United v. FEC and federal campaign finance reform that includes related links to important documents, laws and decisions.
- NYTimes --- Justice Alito defends Citizens United ruling
Recent comments from Justice Samuel Alito Jr. of the Supreme Court again raises the role of the news media and how they are organized under American law.
- Brief for Citizens United
- Bipartisan Campaign Reform Act of 2002: Summary and Comparison with Previous Law
Report prepared for Congress that compares the BCRA with prior federal campaign laws.
© 2012 Bahin Ameri