Lela Gray, Government Law Review member
The U.S. Supreme Court (Supreme Court) decision in the case Citizens United v. Federal Election Commission is causing fireworks throughout the nation weeks after New Years. In a heavily split 5-4 decision, the Supreme Court held that the First Amendment prohibits Congress from barring corporate and union general funds to support or oppose political candidates. Disclaimer and disclosure requirements, however, do not offend the First Amendment.
Court watchers had the outcome of this case already predicted–that Chief Justice Roberts and Justices Alito, Kennedy, Scalia, and Thomas would strike down restrictive corporate campaign spending laws as unconstitutional. Yet, the sharp reactions to the opinion, the ongoing public debate, and the ninety-page dissent written by Justice Stevens seem to signal that this issue is all but settled. So which side is right? Was this judicial activism, or was it a long overdue check against Congressional infringement on the most fundamental of our freedoms?
Congress has prohibited corporations from giving money directly to federal political candidates for over a century. The Bipartisan Campaign Reform Act of 2002 (Campaign Reform Act) strengthened this tradition by prohibiting corporations and unions from applying their general treasury funds to pay for any form of media or “electioneering communication” aimed at advocating for the election or defeat of a candidate in certain federal elections. An “electioneering communication” is defined as “any broadcast, cable, or satellite communication” referring to an identifiable candidate for federal office, and which is “publicly distributed” within thirty days of a primary or sixty days of a general election.
Citizens United (Citizens) is a conservative non-profit advocacy corporation with an annual budget of $12 million, most of which is derived from individual donations with a small portion stemming from contributions by for-profit corporations. In January 2008, Citizens released a ninety-minute documentary entitled Hillary: The Movie (Hillary), which casts a critical shadow over Hillary Clinton’s character and much of her political career. The film was released in theaters and on DVD, but Citizens wanted to advertise the film and make it viewable to cable and satellite subscribers at no charge via video-on-demand. To ensure their ability to do so without fear of criminal penalties under the Campaign Reform Act, the corporation sought declaratory and injunctive relief against the Federal Election Commission (FEC). The District Court held that the Campaign Reform Act was facially constitutional and denied Citizens’ request, instead granting summary judgment in favor of the FEC. Citizens then appealed directly to the Supreme Court.
Side 1: This is About Free Speech
Those who supported Citizens’ efforts argue that free speech is a fundamental right that can not be overcome without a compelling government interest. In their minds, a statutory ban on ads criticizing political candidates is precisely the type of government infringement on free speech that the founders sought to prevent when they wrote the First Amendment. They also fail to see any compelling government interest served by the ban. They contend that any compelling interest argument put forth by the government is destroyed by the fact that the film can be downloaded online and purchased on DVD – two methods of distribution that are not banned by the Campaign Reform Act. Thus, the purported compelling interest of preventing political corruption by banning the distribution of this politically-charged film is destroyed by the fact that the information can be readily obtained in other ways.
Another overarching argument is that this type of censorship is dangerous because it starts a slippery-slope that will lead to more and more censorship. For example, why stop at merely banning political ads and campaigning messages on television? Why not ban all of these messages on all forms of media? Does the Campaign Reform Act do that already? The majority made it clear that these questions are representative of their fears. These were the type of questions thrown at the government over and over again. During oral arguments, members of the Court seemingly pinned the government’s lawyer in the uncomfortable position of having to defend book banning in order to support the law banning the use of corporate funds in electioneering ads. The government tried to wiggle out of this corner, but ultimately fell right into the trap and admitted that the Campaign Reform Act could not only ban certain books but could also ban signs with political messages if those signs were paid for by corporate treasury funds. In fact, the government seemed to get distracted by these questions and failed to focus on larger, more convincing arguments that supported its side.
Side 2: This Is About Potential Political Corruption
“We are moving to an age where we won’t have the senator from Arkansas or the congressman from North Carolina, but the senator from Wal-Mart and the congressman from Bank of America.”
The rationale behind the century-old laws prohibiting corporations from directly giving money to political candidates is easily understood — as a country, we do not want big business buying seats in Congress for their pet politicians. Surely the government has a compelling interest in keeping corruption out of its offices. Some have warned that easing restrictions would be a “potential step towards the formation of a corporatocracy—a system of governance where corporations use their power to influence the will of nations.”
A more modern argument in favor of corporate political contribution regulation is that without laws like the Campaign Reform Act, stockholders may have money they invested in a corporation being used for political advocacy they oppose. By invalidating laws like these, the court “clear[s] the way for the nation’s largest for-profit corporations to electioneer with general treasuries amassed from investors who did not intend the money be used for political purposes and who will not likely obtain relief.”
President Obama declared that the ruling was a major victory for the oil industry, big banks, and other powerful interest groups that use their loud bankrolls “to drown out the voices of everyday Americans.” The President promised to collaborate with Congress to craft a legislative response.
Supreme Court Decision and Rationale
Right off the bat the Court dispersed with the narrower arguments of both sides because a narrowly-tailored opinion in this case would mean a case-by-case determination of similar issues in the future. Instead, the Court rolled up their sleeves, so to speak, and noted that “judicial responsibility” required a consideration of the facial validity of § 441b. This declaration was shocking to many who never thought the Supreme Court would go this far. Perhaps no one was more shocked than the dissenters, led by Justice Stevens.
Justice Stevens sharply criticized the holding as violating the vitals of stare decisis, seeing no difference in the arguments made in Citizens and the arguments made in the Austin and McConnell cases. Before Citizens, the functional equivalency test was the standard. Under the functional equivalency test, the question was whether a communication posed a risk of corruption to the election process so great that Congress was compelled to regulate it. Justice Stevens would have kept that test, but the majority has overruled him and the test. Frustrated, Stevens noted that “[t]he only relevant thing that has changed since Austin and McConnell is the composition of this Court.” Stevens is right about the huge difference in the Court’s composition, he is the one and only remaining member of the Austin majority.
So Which Side is Right?
Right or wrong, it seems clear to this author that judicial activism was steering the boat in this case. Almost all of Citizens’ arguments were narrowly tailored to argue that Hillary should not fall within the reach of § 441b rather than arguing that § 441b is unconstitutional as a whole. Thus, the Court could have decided this case on narrower issues and avoided holding § 441b facially unconstitutional, but they chose instead to go for the jugular.
By holding this law facially invalid, the court has begun to rewind over a century of legal precedent aimed at preventing government corruption via corporate buy-out (or buy-in). There is now a real cause for concern that corporations will soon be permitted to openly buy voting power by spending millions on campaigns to promote preferred candidates and smear opposing runners. While we may now be subjected to political smear campaign ads, our right to curse and publicly proclaim our disagreement with the political pet candidate in the ad will be protected as well.
Edited by Shane Egan & Stephen Dushko
 Citizens United v. Fed. Election Comm’n, 2010 WL 183856, at *36 (U.S. Jan. 21, 2010).
 Id. at *6.
 See Erwin Chemerinsky, A New Term, A New Justice, 45-NOV Trial 50, 50 (2009).
 David G. Savage, Hillary: The Law Changer Unusual Pre-Term Rehearing May Reshape Campaign Finance Laws, 95-SEP A.B.A. J. 24, 24 (2009).
 2 U.S.C. § 441b (2006).
 2 U.S.C. § 434(F)(3)(A) (2006); 11 C.F.R § 100.29(a)(2) (2009). For an overview of the regulation of electioneering communications and further background specific to this case, see Posting of Hiroki Ogawa to Albany Government Law Review Fireplace, Sept. 28, 2009, http://glrfireplace.albanygovernmentlawreview.org/2009/09/28/campaign-finance-reform-from-buckley-to-hillary/.
 Citizens, 2010 WL 183856, at *7.
 Id. at *8.
 Citizens United v. Fed. Election Comm’n, 530 F. Supp. 2d 274, 281-82 (D.D.C. 2008), affd in part, rev’d in part, and remanded by, 2010 WL 183856 (U.S. Jan. 21, 2010).
 Aaron Harmon, Hillary The Movie Corporate Free Speech or Campaign Finance Corruption?, 4 Duke J. Const. L. & Pub. Pol’y Sidebar 331, 332 (2009).
 Id. at 343.
 Id. at 346.
 Citizens, 2010 WL 183856, Transcript of Oral Argument at 27-30 available at http://www.supremecourtus.gov/oral_arguments/argument_transcripts/08-205.pdf; Savage, supra note 4, at *24.
 Citizens, 2010 WL 183856, Transcript of Oral Argument at 32-33 available at http://www.supremecourtus.gov/oral_arguments/argument_transcripts/08-205.pdf.
 See Tony Mauro, Ruling Clears Way for Corporate, Union Campaign Contributions, N.Y.L.J., Jan. 22, 2010, available at http://www.law.com/jsp/nylj/index.jsp (search “Tony Mauro corporate finance”)(quoting Melanie Sloan, Executive Director of Citizens for Responsibility and Ethics in Washington, D.C.).
 Ogawa, supra note 6.
 Elizabeth Pollman, Citizens Not United: The Lack of Stockholder Voluntariness in Corporate Political Speech, 119 Yale L.J. Online 53, 53 (2009).
 Id. at 54.
 Mauro, supra note 19.
 Citizens, 2010 WL 183856, at *8-15.
 Id. at *15.
 Harmon, supra note 12, at 345 (citing Fed. Election Comm’n v. Wis. Right to Life, Inc., 127 S. Ct. 2652, 2672 (2007).
 Citizens, 2010 WL 183856, at *62 (Stevens, J., dissenting).
 Savage, supra note 4, at *25 (2009).
 Citizens, 2010 WL 183856, at *8-15.