Citizens United v. Federal Election Committee (2010)

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Issue

Whether Congress’s prohibition on corporate-funded “electioneering communication” advertisements naming federal candidates 30 days before a primary or 60 days before a general election violates the Free Speech Clause of the First Amendment.

Facts

In 2002 Congress passed the Bipartisan Campaign Reform Act BCRA or “McCain-Feingold Act,” which among other provisions prohibited corporations and unions from directly funding campaign advertisements that singled out specific candidates within 30 days of a primary or within 60 days of a general election. To fund campaign advertisements, BCRA corporations were required to form political action committees PACs, which in turn were limited in the amount of money they could receive and spend on political advertising. In 2003 the Supreme Court upheld the law, ruling that political speech may be qualified based on corporate identity.

Citizens United was a non-profit corporation whose stated mission was “to restor[e] our government to citizens’ control” and “to reassert the traditional American values of limited government,” among other goals. In 2008 they produced a film titled Hillary: The Movie. Recognizing that airing commercials for the movie likely would be considered illegal under the BCRA, Citizens United filed a complaint in federal court, requesting the prohibition on corporate funding to be struck down and asking for an injunction against the FEC. Citizens United argued that the BCRA was unconstitutional and violated the corporation’s rights to freedom of speech and freedom of expression.

The Court Below

The District Court for the District of Columbia was the first to hear the case. The court denied preliminary injunction and granted a summary judgement in favor of the FEC. See opinion below:

Citizens United v. Federal Election Committee, Civil Action No. 07-2240 D.D.C., 2008

Special rules within the BCRA required Citizens United to appeal directly to the Supreme Court, which granted certiorari. The Supreme Court reversed the decision of the court below. See opinion below:

Citizens United v. Federal Election Committee, 130 S.Ct. 876 2010

Question before the Court

1. "Whether all as-applied challenges to the disclosure requirements reporting and disclaimers imposed on "electioneering communications" by the Bipartisan Campaign Reform Act of 2002 "BCRA" were resolved by McConnell’s statement that it was upholding the disclosure requirements against facial challenge “for the entire range of electioneering communications' set forth in the statute." Mem. Op. I, App. 15a quoting McConnell v. FEC, 540 U.S. 93, 196 200.

2. "Whether BCRA's disclosure requirements impose an unconstitutional burden when applied to electioneering communications protected from prohibition by the appeal-to-vote test, FEC v. Wisconsin Right to Life, 127 S. Ct. 2652, 2667 2007 "WRTL II”, because such communications are protected "political speech," not regulable “campaign speech,” id. at 2659, in that they are not "unambiguously related to the campaign of a particular federal candidate," Buckley v. Valeo, 424 U.S. 1, 80 1976, or because the disclosure requirements fail strict scrutiny when so applied.

3. "Whether WRTL II’s appeal-to-vote test requires a clear plea for action to vote for or against a candidate, so that a communication lacking such a clear plea for action is not subject to the electioneering communication prohibition. 2 U.S.C. § 441b. Whether a broadcast feature-length documentary movie that is sold on DVD, shown in theaters, and accompanied by a compendium book is to be treated as the broadcast "ads" at issue in McConnell, 540 U.S. at 126, or whether the movie is not subject to regulation as an electioneering communication."

CCJ filed an amicus curiae in support of Citizens United

Summary:

Citizens United’s criticism of Hillary Clinton follows a long tradition of criticizing candidates for public office. During the election of 1796 one newspaper noted that if Thomas Jefferson were elected, “Murder, robbery, rape, adultery and incest will all be openly taught and practiced, the air will be soaked with blood, and the nation black with crimes.” John Adams was similarly castigated during his tenure, one writer declaring him to to be “a fool, hypocrite, criminal, and tyrant,” stating that “his presidency was one continued tempest of malignant passions.” Such criticism of statesmen reportedly sparked the duel between Alexander Hamilton and Aaron Burr. The article claimed that Hamilton had named Burr “a dangerous man, and one who ought not to be trusted with the reins of government.” The Court noted in New York Times Co. v. Sullivan 1964 that these negative campaign advertisements have continued throughout our history.

The federal government has protected political speech since the founding. Defenders of the First Amendment met Congress’s attempt to regulate political speech in the Sedition Act of 1798 with immediate outcry. The Act outlawed publication of “false, scandalous, and malicious writings against the Government, with intent to stir up sedition.” Yet the following Congress allowed it to expire in 1801, believing it to be unconstitutional, and Thomas Jefferson pardoned all those who had been convicted under the law. He went on to reimburse those who had been fined. Although the Supreme Court did not consider the Act in a case or controversy at the time, in later years the Court commented on its unconstitutionality in New York Times v. Sullivan.

Unequal distribution of wealth has always existed in our nation, and wealth never has been a legitimate, constitutional factor in deciding who qualifies for protection under the First Amendment. During the time of more limited communication of the 18^th and 19^th centuries, both Thomas Jefferson and Alexander Hamilton used their wealth to fund newspapers to promote their political ideas. Today modern technology facilitates far more communication. The Supreme Court indeed noted in Austin v. Michigan Chamber of Commerce 1990 that the government had a compelling interest in combating “the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form,” but the original understanding of the First Amendment is contrary to this argument. If the Founders refrained from regulating speakers who chose to spend money to promote their political opinions in the founding era, in today’s arena of virtually unlimited access to news and opinions, the federal government should similarly refrain from controlling political speech.

Final Outcome

The Supreme Court ruled 5-4 in favor of CCJ’s position, holding that “government may not, under the First Amendment, suppress political speech on the basis of the speaker's corporate identity.” Thus the federal statute prohibiting corporations from spending money on political advertisements was ruled unconstitutional in violation of the First Amendment.