Citizens United v. Federal Election Commission: Preservation of First Amendment Freedoms, or an Invitation to Corporations to Bankroll the United States Election Process?

Melissa Ann Dizon, Government Law Review Member

The Supreme Court, in a 5-4 decision, recently held that corporate funding of political broadcasts in candidate elections cannot be limited because to do so would run afoul of the First Amendment.[1]  This ruling stemmed from the non-profit corporation Citizens United’s case before the court regarding its documentary Hilary: The Movie.[2]  The group wanted to air the documentary during the 2008 presidential primary season through a cable television video-on-demand service and to advertise for it on television.[3]  However, the Bipartisan Campaign Reform Act of 2002, commonly known as the McCain-Feingold Act (hereinafter “MFA”) prohibits certain corporate-funded television broadcasts, such as this documentary, in the sixty days before a general election (or the thirty days before a primary).[4]  The law also requires disclosure by the funders of election-related broadcast advertising, such as these ads.[5]  Citizens United argued against the prohibitions on corporations and unions from using their general treasury funds to make independent expenditures for speech that is an “electioneering communication” or speech that expressly advocates the election or defeat of a candidate.[6] 

 In so holding, the Supreme Court overturned its prior decision in Austin v. Michigan Chamber of Commerce,[7] as well as part of the ruling in McConnell v. Federal Election Commission.[8]  The Court rejected the very idea that the government can decide who gets to speak and that the government can actually ban some from speaking at all, particularly those doing their speaking through associations of members who share their beliefs.  Austin was a case in which the Supreme Court held that the Michigan Campaign Finance Act, which prohibited corporations from using treasury money to support or oppose candidates in elections, did not violate the First and Fourteenth Amendments.[9]  The Court upheld the restriction on corporate speech based on the notion that “[c]orporate wealth can unfairly influence elections,” and also rationalized that the Michigan Act still allowed the corporation to make contributions from a “segregated fund.”[10]  Over a decade later, the Supreme Court in McConnell upheld the key provisions of the MFA: (1) the aforementioned “electioneering communication” provisions; and (2) the “soft money” ban, which prohibits federal parties, candidates, and officeholders from raising or spending funds not in compliance with contribution restrictions, and prohibited state parties from using such “soft money” in connection with federal elections.[11]  For almost twenty years, the Supreme Court has erred on the side of fairness with respect to our democratic election process, by upholding these restrictions on corporate expenditures.  The intent of these pieces of legislation has not been to block free speech; rather, it has been to block the use of large amounts of money as a means of unevenly influencing the political process.

 And now?  Bring on the corporations.

The Court, led by Justice Kennedy, held that the First Amendment stands against attempts to distinguish among different speakers, which may be a means to control content.[12]  In so doing, the Court declared that the government cannot impose restrictions on certain disfavored speakers such as corporations.  The Court also found that free speech rights under the First Amendment do not depend on a speaker’s financial ability to engage in public discussion – the fact that some speakers may have more wealth than others does not diminish their First Amendment rights.[13]

 The First Amendment specifically says that Congress shall pass no law abridging the right to speak. Justice Scalia addresses the applicability of this right to corporations in his concurring opinion:

 The [First] Amendment is written in terms of “speech,” not speakers.  Its text offers no foothold for excluding any category of speakers, from single individuals to partnerships of individuals, to unincorporated associations of individuals, to incorporated associations of individuals . . . . Indeed, to exclude or impede corporate speech is to muzzle the principal agents of the modern free economy. We should celebrate rather than condemn the addition of this speech to the public debate.[14]

 However, dissenters and critics of the majority opinion fear 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.[15]  What may logically flow from this decision is that labor unions, major health care insurance companies, and other financial powers for example, might concentrate their resources to win one particular state judicial election.  The possibilities are endless—one day even tobacco firms and energy companies may be able to use their financial clout to win the future elections.  Unrestricted unleashing of campaign spending monies—who would have thought?  Should we brace for the buying and selling of candidates and elections from now on?  Consider: “American people, we present you with the President of the United States . . . brought to you by Exxon and Philip Morris.”

Edited by Andrew Dructor & Stephen Dushko

[1] Citizens United v. Fed. Election Comm’n, No. 08-205, 2010 WL 183856 (U.S. Jan. 21, 2010); Adam Liptak, Justices, 5-4, Reject Corporate Spending Limit, N.Y. Times, Jan. 22, 2010, at A1.

[2] Citizens United, 2010 WL 183856, at *7; 2 U.S.C. § 441(b) (2008); Liptak, supra note 1.

[3] Id.; see Liptak, supra note 1.

[4] 2 U.S.C. § 441(b) (2008).

[5] Id.

[6] Citizens United, 2010 WL 183856, at *7.

[7] Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990).

[8] McConnell v. Fed. Election Comm’n, 540 U.S. 93 (2003).

[9] Austin, 494 U.S. at 666–68.

[10] Id. at 655, 660.

[11] McConnell, 540 U.S. at 122.

[12] Citizens United, 2010 WL 183856, at *19, *39.

[13] Id. at *19-20.

[14] Id. at *52.

[15] See id. at *53–99 (stating in which Justice Stevens gives a lengthy dissenting opinion on how the majority’s decision threatens to “undermine the integrity of elected institutions across [our nation]”).

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