Learn how the Citizens United v. FEC decision of 2010 transformed U.S. politics and allowed big money to buy and influence votes in elections.
Articulated Insight – “News, Race and Culture in the Information Age”
Edited by Jake Maxwell
Citizens United versus the Federal Election Commission (558 U.S. 310 | 2010), is a landmark decision of the United States Supreme Court regarding campaign finance laws and free speech under the First Amendment to the U.S. Constitution.
The court held in a 5–4 decision that the freedom of speech clause of the First Amendment prohibits the government from restricting expenditures from independent political campaigns, corporations, nonprofit organizations, labor unions, and other associations.
The majority held that the prohibition of all independent expenditures by corporations and unions in the Bipartisan Campaign Reform Act violated the First Amendment.
The ruling barred restrictions on corporations, unions, and nonprofit organizations from independent expenditures, allowing groups to independently support political candidates with financial resources.
The decision remains highly controversial, generating much public discussion and receiving strong support or opposition from various politicians, commentators, and advocacy groups. Senator Mitch McConnell commended the decision, arguing that it represented “an important step in the direction of restoring the First Amendment rights”.
By contrast, former President Barack Obama stated that the decision “gives the special interests and their lobbyists even more power in Washington”.
Citizens United had previously used the 2002 Bipartisan Campaign Reform Act, commonly known as the McCain–Feingold Act or BCRA, which prohibited “electioneering communications” by incorporated entities.
During the 2004 presidential campaign, the organization filed a complaint with the Federal Election Commission (FEC) charging that advertisements for Michael Moore’s Fahrenheit 9/11, a docudrama that was critical of the Bush administration’s response to the terrorist attacks on September 11, 2001; it was said to constitute political advertising, making it ineligible to be aired within the 30 days of a primary election or within 60 days of a general election.
The FEC dismissed the complaint after finding no evidence that advertisements featuring a candidate within the proscribed time limits had actually been made.
In response, Citizens United produced the documentary Celsius 41.11, which was highly critical of both Fahrenheit 9/11 and 2004 Democratic presidential nominee John Kerry.
The FEC, however, held that showing Celsius 41.11 and advertisements for it would violate the Federal Election Campaign Act, because Citizens United was not a bona fide commercial film maker.
In the wake of these decisions, Citizens United sought to establish itself as a bona fide commercial filmmaker before the 2008 elections, producing several documentary films. During the 2008 political primary season, it sought to run three television advertisements to promote its political documentary Hillary: The Movie, a film that was critical of Hillary Clinton, and to air the movie on DirecTV.
The FEC found this plan to be in violation of the BCRA, including Section 203 which defined an “electioneering communication” as a broadcast, cable, or satellite communication that mentioned a candidate within 60 days of a general election or 30 days of a primary, and prohibited such expenditures by corporations and labor unions. The FEC prohibited the broadcast, and Citizens United challenged this determination in court.
The majority opinion was written by the more moderate Justice Anthony Kennedy. Despite his status as a swing vote, Kennedy chose to align with the other more conservative justices.
The High Court held that BCRA Section 203’s prohibition of all independent political expenditures by corporations and unions violated the First Amendment’s protection of free speech. As Justice Kennedy wrote, “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.”
Kennedy also noted that because the First Amendment does not distinguish between media and other corporations, the BCRA restrictions improperly allowed Congress to suppress political speech in newspapers, books, television, and blogs. Consequently, “There is no such thing as too much speech.”
The court overturned the 1990 precedent Austin v. Michigan Chamber of Commerce, which had held that a state law that prohibited corporations from using money to support or oppose candidates in elections did not violate the Constitution.
The majority argued that the government had no place in determining whether large expenditures distorted an audience’s perceptions, and that the type of “corruption” that might justify government controls on spending for speech had to relate to some form of “quid pro quo” transaction in which politicians favored corporations from whom they received donations.
The court overruled a portion of the 2003 precedent McConnell v. FEC that upheld the BCRA restriction of corporate spending on electioneering communications.
The majority also held that the free press clause of the First Amendment protects groups of individuals in addition to individual speakers.
Because spending money is essential to disseminating speech, established in the 1976 case Buckley v. Valeo, limiting the members of a corporation’s ability to spend money was ruled unconstitutional, as it effectively neutralized its power to address political issues.
The court’s opinion relied heavily on the case Buckley and First National Bank of Boston v. Bellotti, in which it struck down a broad prohibition of independent expenditures by corporations in ballot initiatives and referendums.
The majority argued that the First Amendment purposefully keeps the government from “rationing” speech and interfering in the marketplace of ideas, and it is not up to legislatures or courts to create a sense of “fairness” by restricting speech.
A concurring opinion written by Chief Justice John Roberts addressed the important principles of judicial restraint and stare decisis implicated in the landmark case.
Justice Roberts explained why the Supreme Court must sometimes overrule prior decisions. Had prior courts never gone against precedent, for example, “segregation would be legal, minimum wage laws would be unconstitutional, and the Government could wiretap ordinary criminal suspects without first obtaining warrants”.
Justice Roberts cited numerous examples of case law in which the court had ruled against precedent. Ultimately, Roberts argued that past mistakes provide no justification for making new mistakes.
The dissenting opinion written by Justice John Paul Stevens was joined by Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor. To emphasize his unhappiness with the majority, Stevens actually read part of his 90-page dissent from the bench.
Justice Stevens concurred in the court’s decision to sustain BCRA’s disclosure provisions but dissented from the principal holding. He argued that the majority ruling “threatens to undermine the integrity of elected institutions across the Nation. The path it has taken to reach its outcome will, I fear, do damage to this institution.” He added: “A democracy cannot function effectively when its constituent members believe laws are being bought and sold.”
Justice Stevens also argued that the decision allowed the court to address a question that was not raised by the litigants, when it found BCRA Section 203 to be unconstitutional on its face, and that the majority decision “changed the case to give themselves an opportunity to change the law”.
The Citizens United Ruling was highly controversial and remains a subject of widespread public discussion.
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