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.