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Civic Register
| 3.17.20

What is Citizens United?

Do you support Citizens United?

BACKGROUND

The U.S. Supreme Court’s landmark decision in Citizens United v. Federal Elections Commission (2010) is one of the most consequential and controversial of the 21st century. It held that political expenditures, including those by corporations, are considered protected speech under the First Amendment. The ruling proved instrumental in subsequent decisions by lower courts and the FEC that led to the formation of so-called “super PACs.”


OVERVIEW

The Citizens United v. Federal Elections Commission (FEC) case arose after a conservative non-profit group known as Citizens United produced a film, Hillary: The Movie, that was critical of then-Sen. Hillary Clinton (D-NY) with the intention of airing it in advance of the 2008 presidential primary elections. The film expressed negative opinions about whether Clinton would be a good president.

Doing so who would have been a violation of a campaign finance law known as the Bipartisan Campaign Reform Act of 2002 (BCRA or McCain-Feingold), which prohibited corporations and labor unions from airing issue ads defined as “electioneering communications” within 30 days of a primary or 60 days of an election; and from making any expenditure advocating for the election or defeat of a candidate at any time. The BCRA also required the disclosure of donors sponsoring covered political advertisements.

Citizens United filed a lawsuit challenging the constitutionality of those provisions, arguing that they violated the First Amendment by prohibiting political speech. After a district court ruled that the restrictions were constitutional under the BCRA and a pair of previous cases (Austin v. Michigan Chamber of Commerce & McConnell v. FEC) that allowed restrictions on corporate political speech, the case reached the Supreme Court.

In a January 2010 decision that was split 5-4 along ideological lines, the Supreme Court’s conservative majority held that the BCRA’s restrictions on corporations making independent political broadcasts related to candidates in elections violated the First Amendment. Justice Anthony Kennedy authored the majority opinion and explained:

“Modern day movies, television comedies, or skits on Youtube.com might portray public officials or public policies in unflattering ways. Yet if a covered transmission during the blackout period creates the background for candidate endorsement or opposition, a felony occurs solely because a corporation, other than an exempt media corporation, has made the “purchase, payment, distribution, loan, advance, deposit, or gift of money or anything of value” in order to engage in political speech. Speech would be suppressed in the realm where its necessity is most evident: in the public dialogue preceding a real election. Governments are often hostile to speech, but under our law and our tradition it seems stranger than fiction for our Government to make this political speech a crime. Yet this is the statute’s purpose and design.
Some members of the public might consider Hillary to be insightful and instructive; some might find it to be neither high art nor a fair discussion on how to set the Nation’s course; still others simply might suspend judgment on these points but decide to think more about issues and candidates. Those choices and assessments, however, are not for the Government to make. “The First Amendment underwrites the freedom to experiment and to create in the realm of thought and speech. Citizens must be free to use new forms, and new forums, for the expression of ideas. The civic discourse belongs to the people, and the Government may not prescribe the means to conduct it.””

Chief Justice John Roberts was joined by Justice Samuel Alito in a concurring opinion, which read in part:

“The Government urges us in this case to uphold a direct prohibition on political speech. It asks us to embrace a theory of the First Amendment that would allow censorship not only of television and radio broadcasts, but of pamphlets, posters, the Internet, and virtually any other medium that corporations and unions might find useful in expressing their views on matters of public concern. Its theory, if accepted, would empower the Government to prohibit newspapers from running editorials or opinion pieces supporting or opposing candidates for office, so long as the newspapers were owned by corporations ― as the major ones are. First Amendment rights could be confined to individuals, subverting the vibrant public discourse that is at the foundation of our democracy. The Court properly rejects that theory, and I join its opinion in full. The First Amendment protects more than just the individual on a soapbox and the lonely pamphleteer.”

Justice John Paul Stevens authored the minority opinion that was joined by the Court’s liberals. It concluded:

“In a democratic society, the longstanding consensus on the need to limit corporate campaign spending should outweigh the wooden application of judge-made rules. The majority’s rejection of this principle “elevate[s] corporations to a level of deference which has not been seen at least since the days when substantive due process was regularly used to invalidate regulatory legislation thought to unfairly impinge upon established economic interests.” At bottom, the Court’s opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self-government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.”

Additionally, the Supreme Court decided 8-1 that the BCRA’s donation disclosure requirements for sponsors of political ads were constitutionally valid because they served a public interest.


HOW HAS POLITICAL SPENDING CHANGED AFTER CITIZENS UNITED?

While Citizens United is often cited as being directly responsible for the creation of the so-called “super PACs” that aren’t bound like regular political action committees (PACs) to only accept limited donations from individuals, it was actually a subsequent court ruling which did that in a March 2010 case known as SpeechNOW.org v. FEC.

SpeechNOW.org, a non-profit, sought to take in contributions from individuals (as opposed to corporations) which exceeded the $5,000 cap on individual donations, without registering as a PAC, for the sole purpose of making independent expenditures that advocate for the election or defeat of a candidate without coordinating with the candidate or their opponent. The D.C. Circuit Court of Appeals unanimously held that under the Citizens United precedent, SpeechNow.org was constitutionally permitted to accept unlimited donations for the purposes of making independent expenditures, but that it was subject to register as a PAC and disclose its donors.

Following the decision in SpeechNOW, the FEC approved a request by a liberal organization known as Commonsense Ten in July 2010 to register as an independent expenditure-only PAC and receive unlimited contributions from individuals, corporations, and unions. It effectively became the first “super PAC” ― opening the door for the proliferation of what has become one of the most common & heavily financed type of PAC.

In the wake of these decisions and the inception of super PACs, political spending on U.S. elections continued to increase. Here’s a rundown of how election spending has grown over time using data compiled by the Center for Responsive Politics:

  • Midterm Election Years: 1998 - $1.618 billion; 2002 - $2.181 billion; 2006 - $2.852 billion; 2010 - $3.631 billion; 2014 - $3.845 billion; 2018 - $5.725 billion.
  • Presidential & Congressional Election Years: 2000 - $3.082 billion; 2004 - $4.147 billion; 2008 - $5.285 billion; 2012 - $6.285 billion; 2016 - $6.511 billion.
  • Presidential Elections Only: 2000 - $1.413 billion; 2004 - $1.910 billion; 2008 - $2.799 billion; 2012 - $2.621 billion; 2016 - $2.386 billion.


WHAT ARE SOME PROPOSALS IN RESPONSE TO CITIZENS UNITED?

The Citizens United decision and the subsequent rulings that led to the creation of super PACs has proven controversial since 2010, and prompted proposals to reverse the precedent. However, the options for overturning a Supreme Court decision on constitutional are limited, and can only be accomplished by:

  • Ratification of a constitutional amendment, which requires either a two-thirds vote by the House of Representatives & Senate plus ratification by three-fourths of the state legislatures; or the adoption of an amendment through a constitutional convention called for following a vote by two-thirds of the state legislatures (which has never been utilized). 
  • A subsequent Supreme Court decision that reverses in full, or in part, the original decision.


Nonetheless, there have been numerous bills introduced in Congress to amend the Constitution by confining First Amendment rights to individuals and not corporations, unions, or other artificial entities.


WHAT DO SUPPORTERS OF CITIZENS UNITED SAY?

Corporations and unions, as groups formed by like-minded people who give them financial resources, have the same First Amendment right to make political donations about issues important to them as individuals who support them do. The government can’t be permitted to determine what is or is not political speech without giving it the capacity to stifle that speech.


WHAT DO OPPONENTS OF CITIZENS UNITED SAY?

The Citizens United decision empowered corporations and the wealthy at the expense of average Americans, diminishing their voice in the political process. That decision must be overturned through a new Supreme Court decision or through a constitutional amendment to make clear that corporations and unions don’t have First Amendment rights.


RESOURCES


— Eric Revell

(Photo Credit: iStock.com / NoDerog)