2010’s First Landmark Supreme Court Decision: Balancing Potential Political Corruption and Free Speech

 

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.[1]  Disclaimer and disclosure requirements, however, do not offend the First Amendment.[2] 

            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.[3]  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?

Background

            Congress has prohibited corporations from giving money directly to federal political candidates for over a century.[4]  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.[5]  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.[6] 

            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.[7]  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.[8]  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.[9]  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).[10]  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.[11]  Citizens then appealed directly to the Supreme Court.[12]

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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.

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

Taking a Hard Line on Soft Money: Corporate Campaign Finance Reform from Buckley to Hillary

Hiroki Ogawa, Staff Writer

          On the 9th of September, the Supreme Court heard rearguments on Citizens United v. Federal Election Commission,[1] a case involving entrenched campaign finance policies.[2]  It is unsurprising if the case or the movie at its heart, Hillary: The Movie, do not sound familiar; the Federal Election Commission (“FEC”) swiftly silenced advertising attempts for the movie[3] pursuant to the Bipartisan Campaign Reform Act of 2002, also known as the McCain-Feingold Act.[4] 

           Citizens United, the producer of the movie, is a non-profit organization advocating “traditional American values of limited government, freedom of enterprise, strong families, and national sovereignty and security.”[5]  It aims to restor[e] [the] government to citizens’ control . . . [t]hrough a combination of education, advocacy, and grass roots organization . . . .”[6]  Citizens United (hoped to) achieve this by producing Hillary: The Movie, which criticized Hillary Clinton’s background and policies.[7]  It might have produced the movie unfettered were it not funded with corporate donations.  Because the movie was effectively a political advertisement funded partially by corporate donations, it met the definition for “electioneering communications.”[8]  The McCain-Feingold Act specifically restricts release of electioneering communications shortly before elections.[9]  Consequently, Citizens United was left with a film it could not advertise over traditional channels.

          Regulation of electioneering communications, inter alia, is a response to the increased use of “soft money” support for campaign finance.[10]  Contemporarily, political money is divided into two types—hard money, and soft money.[11]  The difference between hard money and soft money is twofold.  First, hard money and soft money differ on how they may be used to support candidates.  Hard money may be used for direct support of a candidate, while soft money can only be used for indirect support, e.g. “party building” activities.  Second, hard and soft money differ in by whom the money can be donated.  Hard money may not be donated by corporations or labor unions, while soft money can.  In practice, these distinctions affect how political money is spent for advertising, which is why campaign finance issues frequently boil down to balancing potential corruption and infringement on free speech.

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