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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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.

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