Citizens United v. Federal Election Commission, No. 08-205 (2010)

Citizens United v. Federal Election Commission, No. 08-205 (2010)

Facts—The Bipartisan Campaign Reform Act of 2002 (BCRA) prohibited corporations and unions from making independent expenditures for electioneering communications within 30 days of a primary election. McConnell v. Federal Election Commission (2003) had rejected a facial challenge to this law. Citizens United challenged the law after becoming concerned that a negative documentary on Hillary Clinton, which it hoped to air on cable tele- vision, would be illegal. The case was reargued after the Court specifically asked parties to address whether it should overrule precedents.


(a) Do election laws prohibiting independent corporate and union broadcast of campaign-related materials relative to specific candidates violate the First Amendment?

(b) Do related disclaimer and disclosure requirements violate the amendment?

Decision—(a) Yes; (b) no.

ReasonsJ. Kennedy (5–4). The McConnell decision largely rested on Austin

v. Michigan Chamber of Commerce (1990), which permitted bans on corporate speech. Austin departed from established precedents and should be overturned. Prior law already prohibits direct contributions from unions and corporations to political candidates. The documentary that Citizens United wanted to distribute fell clearly under the prohibition of the law, which prohibited express advocacy. The Court cannot easily distinguish video-on-demand from other media technology, and it should not carve out a special exception for nonprofit corporations like Citizens United. The government has not provided adequate reason for the Court to consider an as-applied as opposed to a facial challenge to the law, without chilling the exercise of free speech in the interim, especially in the case of such core political speech. A speaker facing uncertainty over the constitutionality of speech is just as effectively censured as if this were a form of prior restraint or a licensing law, especially since the law imposes criminal penalties. Although unions and corporations could work through PACS, these can be “burdensome” and “expensive” alternatives that require excessive paperwork. “Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people,” and laws burdening such speech are subject to “strict scrutiny.” The First Amendment is “[p]remised on mistrust of governmental power” and “stands against attempts to disfavor certain subjects or viewpoints.” Moreover, First Amendment protection extends to corporations, and especially to political speech. Buckley v. Valeo (1976) did not specifically address the ban on corporation and union independent expenditures, but First National Bank of Boston v. Bellotti (1978) “reaffirmed the First Amendment principle that the Government cannot restrict political speech based on the speaker’s corporate identity.”

The Austin decision identified “an antidistortion interest” in limiting political speech based on an attempt to prevent the effects of accumulated wealth, but these are at odds with prior cases. “If the antidistortion rationale were to be accepted, . . . it would permit Government to ban political speech simply because the speaker is an association that has taken on the corporate form,” and would give Congress undue power. Moreover, Congress would have no basis for distinguishing between corporations that are media corporations and those that are not. Austin thus “interferes with the ‘open marketplace’ of ideas protected by the First Amendment.” A ban on indirect contributions cannot be justified as a means of prohibiting corruption, since such contributions are not coordinated with campaigns and involve no quid pro quo. The decision in Caperton v. A.T. Massey Coal Co. (2009) does not argue to the contrary. Moreover, this decision is unaffected by McConnell’s opinion regarding “soft money” expenditures. Considerations of antiquity, reliance, and reasoning are inadequate in this case to support stare decisis, especially given Austin’s own abandonment of previous precedents. Disclaimer and disclosure requirements are valid since that did not impose a “ceiling on campaign-related activities.” They help make it clear that the advertisements are not funded by the candidates, and Citizens United has not shown that its members feared retaliation. The court should be particularly reluctant to suppress speech “in the public dialogue preceding a real election.”

C.J. Roberts wrote a concurring opinion, joined by J. Alito, specifically to address issues of judicial restraint and stare decisis.

J. Scalia wrote a concurrence (joined by J. Alito and J. Thomas) attempting to refute J. Stevens’s analysis of the original intent of the First Amendment, arguing that the Amendment was designed to protect both private and media interests. “The Amendment is written in terms of ‘speech,’ not speakers.”

J. Stevens authored a dissent arguing that “the distinction between corporate and human speakers is significant.” He noted that restrictions on corporate expenditures dated back to the Tillman Act of 1907. He questioned whether the broad issue that the Court decided was properly before it and whether the Court should have accepted a facial rather than an as-applied challenge. The Court should wait for real issues rather than attempt to “hedge against future judicial error.” The Court could have ruled on much narrower grounds than it did, and the principle of stare decisis would indicate that it should do so. The decision in Austin has not shown itself to be as flawed as the majority suggests, and the Court has not adequately addressed issues like “the antiquity of the precedent, the workability of its legal rule, and the reliance interests at stake.” Because corporations can operate through PACS, the majority’s image of an outright “ban” is inaccurate. The limits of this law are narrow enough that they may be construed as a reasonable “time, place, and manner restriction.” The Bellotti precedent is not nearly as broad as the Court has interpreted it, and the court has long approved “the authority of legislatures to enact viewpoint-neutral regulations based on content and identity.” The majority’s stance would have given “Tokyo Rose” the same protection to speak to U.S. troops during World War II as their commanders. The Framers had a much narrower view of speech, and of the rights of corporations, than the majority, and the original understanding has been substantiated by the history of regulation in this area. “[T]he Constitution does, in fact, permit numerous ‘restrictions on the speech of some in order to prevent a few from drowning out the many.’” The laws at issue are legitimate measures to prevent corruption (not all of which fall into the quid pro quo category) and to protect shareholders from expenditures they do not support. The Court should, in any event, defer to legislative judgment on such matters. However useful corporations may be, “They are not themselves members of ‘We the People’ by whom and for whom our Constitution was established.” “The Court’s blinkered and aphoristic approach to the First Amendment may well promote corporate power at the cost of the individual and collective self-expression the Amendment was meant to serve.”

J. Thomas concurred with the majority’s decision to protect corporate speech but dissented from the part of the opinion that upheld disclosure, disclaimer, and reporting requirements. Citing the “right to anonymous speech” recognized in McIntyre v. Ohio Elections Commission (1995), Thomas cited examples of intimidation and retaliation that had arisen after the disclosure of contributors to Proposition 8, dealing with same-sex marriage, in California.

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