Citizens United v. Federal Election Commission
For more than 100 years Congress and the Supreme Court carefully fashioned laws to check corporate power in elections. At first, the restraints were loose, but over the years they tightened. There were debates and a few dissents, but the nation never hesitated in its direction—until 2010 when five justices of the Supreme Court decided to reverse course. This is the story of their decision. It begins in the nation’s youth.
CONGRESS PROTECTS ELECTIONS
In the American philosophy of self-government, free elections are an indispensable bulwark against tyranny. The founders believed all citizens should have the right to vote, that their votes should count equally, and that a majority should prevail. The rules in the Constitution bound the young nation to these ideals. The Founding Fathers also believed that if citizens were to vote wisely, they needed full, open debate on candidates and issues. The central purpose of the First Amendment, which directs that “Congress shall make no law … abridging the freedom of speech,” is to protect this debate.
In the early years of the republic the practice largely accorded with the ideal. The first challenge came right after the Civil War when violence and intimidation kept freed slaves from the polls. Congress passed two Enforcement Acts in 1870 and 1871 to protect the freed slaves’ right to vote and these were the first election laws. The Supreme Court eventually upheld “the [constitutional] power of [C]ongress to make such provisions as are necessary to secure the fair and honest conduct of an election.”1
A second challenge to “fair and honest conduct” in elections arose when industrial growth created pools of great wealth. By the 1870s railroads were already spending heavily for political favors. In 1873 Jay Gould, owner of the Erie Railroad, explained his businesslike approach to elections.
It was the custom when men received nominations to come to me for contributions, and I made them and considered them good paying dividends for the company; in a republican district I was a strong republican, in a democratic district I was democratic, and in doubtful districts I was doubtful; in politics I was an Erie railroad man every time.2
As time passed, the amounts of business money in elections grew. So did public perception of corruption, real and imagined. Standard Oil is reported to have given a check for $250,000 (about $6.4 million in current dollars) to reelect McKinley in 1900. In 1905 an investigation of New York insurance companies inflamed the nation. It revealed they had spent hundreds of thousands of dollars electing state and national politicians. A prominent Republican boss, when asked if these contributions bought favors, replied: “That’s naturally what would be involved.”3 The investigation also revealed a $50,000 ($1.2 million in today’s dollars) donation from New York Life page 305to President Theodore Roosevelt in 1904. Roosevelt, who had said he would reject money from the trusts and fund his campaign with contributions from average citizens, was so embarrassed that he called on Congress to forbid “all contributions by corporations to any political committee or for any political purpose.”4 In 1907 it did so with the Tillman Act, which prohibited banks, corporations, and insurance companies from contributing money to presidential and congressional candidates.
ELECTION LAW EXPANDS, TIGHTENs RESTRAINTS ON CORPORATIONS
The Tillman Act was the first effort by Congress to protect the institution of free elections by restricting the entry of corporate wealth. Although the Tillman Act applied only to federal elections—that is, elections for president, vice president, senator, and representative—about half the states eventually passed similar laws. One was Montana, where copper interests had corrupted elections for sheriffs, judges, county commissioners, and state legislators. Its citizens, weary of vote buying, passed a 1912 initiative making it illegal for a corporation to “pay or contribute in order to aid, promote or prevent the nomination or election of any person … political party or organization.”5
The Tillman Act and its progeny in the states turned out to be more loophole than law. Corruption continued. In 1925, after the Teapot Dome scandal, Congress passed the Federal Corrupt Practices Act to strengthen restrictions on campaign contributions and spending. In 1939 it passed the Hatch Act banning contributions from federal employees so that presidents could not make campaign giving a condition of holding a job. In 1947 the Taft-Hartley Act extended the ban on contributions to labor unions and prohibited independent expenditures by banks, corporations, and unions for messages that asked for the election or defeat of candidates. Congress intended to prevent these entities from going around the Tillman Act’s contribution ban and spending money from their treasuries to elect or defeat candidates on their own. President Truman vetoed the law, expressing concern that banning independent spending was “a dangerous intrusion on free speech, unwarranted by any demonstration of need.”6 Congress overrode the veto.
When the United Auto Workers tested the Taft-Hartley law by spending union dues on television ads in the 1954 elections, the Supreme Court upheld the independent expenditure ban in a close 5–4 decision. This drew a spirited dissent from Justice William O. Douglas.
Until today political speech has never been considered a crime … [I]t costs money to communicate an idea to a large audience … Yet [the Taft-Hartley law] … makes criminal any “expenditure” by a union for the purpose of expressing its views on the issues of an election and the candidates. Some may think that one group or another should not express its views in an election because it is too powerful …
But [this does not justify] withholding First Amendment rights from any group—labor or corporate.7
Although corporate spending on campaigns continued to flow through loopholes and grow, for the next quarter century Congress took no action. It acted again in 1971 by passing the Federal Election Campaign Act (FECA) to compel more disclosure of contributions and expenditures. Then, following the Watergate scandal, it amended and strengthened this law in 1974 to close longtime loopholes for corporate money. It set contributions limits of $1,000 per election per candidate and $25,000 a year total giving for individuals and limited their independent expenditures to only $1,000 a year. Wealthy executives could no longer contribute at will. It also set strict contribution limits for political committees. It expanded the Tillman Act’s ban on corporate contributions to include giving anything of value. Corporations could no longer abet campaigns with gifts of staff and services. It continued the Taft-Hartley Act’s ban on independent expenditures for election advocacy by corporations (see the accompanying box for the wording).
But it opened a loophole. It permitted corporations to set up political action committees (PACs). These PACs could not be funded by corporate treasuries, only by individual contributions from employees up to a limit of $5,000 per employee per two-year election cycle. Using this money, PACs could engage in advocacy, for example, by running television ads for or against candidates. With PACs, corporations had a political voice, one muted by the limited amounts employees would contribute, but a voice nonetheless. With this provision Congress tried to narrow its remedy for the corruption potential in corporate spending, taking away most, but not all, of the corporation’s potential voice, abridging its speech only as much as necessary out of deference to the First Amendment.
The FECA also created a new agency to enforce election laws. The Federal Election Commission (FEC) is an independent regulatory agency with six commissioners, no more than three of whom can be from one political party. Candidates and committees must register with it and file periodic finance reports. It writes rules, issues guidance, files reports from candidates and donors, and keeps records.
And to underline its resolve, Congress added criminal penalties. Now “knowingly and willfully” violating the law by an aggregate amount more than $25,000 in a year was a felony subject to imprisonment of up to five years and a fine or both. Lesser violations were misdemeanors with sentences up to one year and fines up to triple the amount of illegal contributions or expenditures.
Election law now was more complex. Essentially, the government had created a censorship regime that, in carefully calculated ways, would protect elections by prohibiting speech here, reducing it there, and allowing it elsewhere.
TESTS OF CONSTITUTIONALITY
Forthwith, opponents disputed the constitutionality of the new contribution and expenditure limits. In 1976 the Supreme Court said campaign contributions and spending were speech protected by the First Amendment. But it held that preventing “the reality or appearance of improper influence stemming from the dependence of candidates on large campaign contributions” was so important that it justified abridging some speech rights.8 It upheld the FECA limits on individual contributions. The prohibitions on corporate contributions and independent expenditures remained in place. However, the Court struck down limits on independent expenditures by individuals, page 307holding that because they were not prearranged or coordinated with a campaign they did not present the same danger of real or apparent corruption. The case was Buckley v. Valeo.
After Buckley, regulation of elections under the FECA expanded. Congress twice more amended the law. The Federal Election Commission wrote rules and issued hundreds of advisory opinions about its application, supporting some methods of advocacy, denying others, creating tests, and parsing reporting requirements. Its voluminous output added to the complexity already present in election law. Candidates and corporations needed to consult attorneys before speaking out. Yet the regulatory scheme failed to slow the rise of money in elections, eliminate episodic corruption scandals, subdue corporate influence, or restore public confidence in government.
In cases coming before it, the Supreme Court generally upheld the government’s right to limit direct contributions and independent election spending by corporations (and unions). The Michigan Chamber of Commerce brought one such case. It wanted to support a state candidate with an ad in a local newspaper. This would be an independent expenditure made apart from any control or direction by the candidate’s campaign. The Chamber, a nonprofit corporation funded by dues from its corporate members, wanted to pay for the ad with general treasury funds.
However, like the federal government, Michigan’s election law prohibited corporations from using their own funds to advocate election or defeat of a candidate. The Chamber challenged the constitutionality of the Michigan law as a violation of its First Amendment speech rights. This was the first time the constitutionality of the government ban on independent expenditure by corporations had come before the Supreme Court. In Austin v. Michigan Chamber of Commerce the Court upheld the Michigan law. In doing so it invented a new justification for limiting corporate speech. The year was 1990.
When the Court inspects speech restrictions of any kind it submits them to strict scrutiny, a term with specific meaning. To survive strict scrutiny, a speech law must pass two tests. First, it must serve a compelling government interest, not simply respond to a passing need or solve a minor problem, but address a matter of highest importance. In Austin the majority found that compelling interest in the “distorting effects” of corporate wealth that reflects only the economic decisions of consumers and investors. It was a novel argument that implied it was the government’s business to referee the relative strength of ideas in political debate.
Michigan’s regulation aims at … the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideals … Corporate wealth can unfairly influence elections when it is deployed in the form of independent expenditures, just as it can when it assumes the guise of political contributions.9
Second, a speech regulation must be narrowly tailored, that is, it must restrict only as much expression as is necessary to achieve its objective. By analogy, a swatter is the narrowly tailored solution for a fly on the wall, not fumigation of the building. The Michigan law passed this part of the test because it was not an absolute ban on corporate speech. Even if corporations could not spend money from their treasuries, they could still make political expenditures through PACs.
CLOSING THE SOFT MONEY LOOPHOLE
The Austin decision confirmed that the ban on independent expenditures by corporations was constitutional. However, corporations found their way around this ban, exploiting a loophole in the FECA and several advisory opinions of the Federal Election Commission that, together, allowed them to give unlimited amounts of soft money to national party committees. Soft money is simply money raised outside the rules of the FECA. Not falling under the law, it could come from corporate treasuries. Corporations began writing large checks to national party committees, which gave the money to state party committees that used it to broadcast ads for and against candidates. These ads were flimsily disguised as “issue ads.” They purported to address broad issues but in fact promoted specific candidates. Instead of saying “Vote for Smith” at the end, they would say something such as, “Call Smith, tell her what you think.”
As corporate funding for “issue ads” skyrocketed, their pretense wore thin with the American public. page 308Congress then passed a new law to protect elections from the dangers of corruption posed by soft money. It was the Bipartisan Campaign Reform Act of 2002, better known as the McCain-Feingold Act after its sponsors Sen. John R. McCain (R-Arizona) and Sen. Russ Feingold (D-Wisconsin). The new law amended the FECA, banning soft money contributions to reduce the influence of corporations. It raised contribution limits for individuals to give them more influence in elections. And it attempted to reduce the influence of “issue ads” funded with corporation’s independent expenditures by setting up blackout periods just before elections when they were prohibited.
In the arcane lexicon of McCain-Feingold a banned “issue ad” became an “electioneering communication.” The term meant any broadcast, cable, or satellite communication that referred to a clearly identified federal candidate made within 60 days before a general election or 30 days before a primary and targeted to the relevant electorate (see the accompanying box). To meet the definition, the potential audience for an ad that referred to a candidate for president or vice president had to be 50,000 or more. If it referred to a candidate for the House or Senate, it had to be 50,000 or more persons in the relevant congressional district or state.10 Electioneering communications did not include news stories or editorials from media corporations or ads paid for by corporate PACs, since the FECA allowed them to pay for advocacy with money raised from individual contributions, or “hard money.”
That at this point the law was confusing, even baffling, was the result of an underlying dynamic at work in election law. Congress was struggling to make good on its constitutional duty to ensure “fair and honest” elections. As in the past, each time it tried to shut another door for corporate money, the rules grew more complex. It is a winless, endless game between two players. Corporations, blocked by election laws, work continuously and successfully to find new loopholes. As they do, Congress has to work around the speech protections in the First Amendment to close them. Both parties are clever innovators. The public provides an audience and federal courts and regulators serve as arbiters.
Inevitably, the constitutionality of McCain-Feingold’s restrictions on speech was challenged. If the intricacy of the law was ever in question, the 1,700-page district court decision upholding its major elements confirmed that.11 Likewise, when the case, page 309McConnell v. Federal Election Commission, was appealed to the Supreme Court, the justices upheld the soft money and electioneering provisions. Their close 5–4 decision was 272 pages and contained six separate opinions.12
Years of accumulated complexity in the law invited uncertainty. Was something illegal or not? Advisory opinions rolled in waves from the Federal Election Commission. For example, a Wisconsin corporation that owned 22 auto dealerships was unsure if it could advertise on television before a primary. Its owner, Russ Darrow, was running for the Senate and his name was part of each dealership. It requested an advisory opinion from the commission on a batch of ads.
One said: “Stop into Russ Darrow Cadillac on Highway 18 in Waukesha and see what Cadillac style is really all about.” Another: “We’ll prove to you that Toyotas cost less in West Bend at Russ Darrow.” Did these ads violate the ban on electioneering communications by referring to a clearly identified federal candidate? In a five-page opinion letter the commission said no, the ads referred to a dealership, not to the candidate.13 It was a fine distinction. Had the company been wrong, it would have been guilty of a crime.
ENTER CITIZENS UNITED
Citizens United is a political advocacy group founded in 1988 to promote a conservative agenda. It is funded mainly by individuals, but about 1 percent of its budget comes from corporate contributions. Its mission is to educate the public about issues and to support conservative candidates and causes. It produces a stream of partisan editorials, reports, and books with titles such as Intelligence Failure: How Clinton’s National Security Policy Set the Stage for 9/11.14
In 2008 it made a 90-minute documentary titled Hillary: The Movie to show during the presidential primaries as Hillary Rodham Clinton campaigned for the Democratic presidential nomination. The movie was very negative, containing comments such as “[s]he is steeped in controversy, steeped in sleaze” and “[s]he is the expert at not saying what she believes,” and “we must never forget the fundamental danger that this woman [poses] to every value that we hold dear.”15
Citizens United released Hillary in January 2008. Seven theaters across the country showed it. The group’s Web site sold DVDs for $23.95. Since no “broadcast, cable, or satellite communication” took place, these actions were not an “electioneering communication” that violated the law. But Citizens United also wanted to make Hillary available on a nationwide video-on-demand channel named “Elections ‘08” and run short ads for the film on TV stations.
The group believed that the Federal Election Commission would define these actions as electioneering communications. It filed a complaint in federal district court asking for an injunction to stop the commission from enforcing the law. Then, it could show Hillary while it challenged the application and constitutionality of provisions in the McCain-Feingold law. The case was Citizens United v. Federal Election Commission.
IN FEDERAL DISTRICT COURT
This litigation was more than a straightforward effort to broadcast the movie. It was a principled challenge. Citizens United had two main arguments.
First, the ban on corporate expenditures for electioneering communications was an unconstitutional abridgement of speech guaranteed by the First Amendment. This is a facial challenge, which the court must resolve by a ruling that a law is or is not consistent with the intent of the Constitution. If it is unconstitutional, it is struck down from any application. The district court rejected this facial challenge, pointing out that the Supreme Court had previously upheld the constitutionality of the ban on electioneering communications.
Second, Citizens United argued that even if this provision were constitutional it was wrongly applied to Hillary, which was a journalistic documentary that nowhere explicitly asked the audience to vote for or against Hillary Clinton. It was a genuine page 310discussion of issues, not an electioneering communication. This is an as-applied challenge, which is resolved by determining if a constitutionally valid law is invalid in part or in a specific set of circumstances. The court rejected this as-applied argument too, noting that the film “is susceptible of no other interpretation than to inform the electorate that Senator Clinton is unfit for office.”16 So the law applied. It could not show the film.
Finally, Citizens United had also challenged certain disclosure and disclaimer requirements in McCain-Feingold. It planned to televise several ads for Hillary and the law required a spoken statement naming Citizens United as the group responsible for their content. The same statement had to appear in print on-screen for at least four seconds. The group also had to include its name, address, and phone number. Two of the ads were only 10 seconds long and it argued these inclusions were an unconstitutional burden on speech. Here is the script of one 10-second ad.
[Image(s) of Senator Clinton on screen]
“First, a kind word about Hillary Clinton: [Ann Coulter Speaking & Visual] She looks good in a pant suit.”
“Now, a movie about everything else.”
[Film Title Card]
[Visual Only] www.hillarythemovie.com17
The district court upheld the disclosure requirements and permitted televising of the ads.
IN THE SUPREME COURT
Citizens United appealed to the Supreme Court, which accepted the case. Oral argument before the nine justices was scheduled for March 24, 2009. During oral argument the time, usually one hour, is divided equally, giving each side a chance to make its case. Sessions are lively. The justices show little deference to the presenting attorneys, interrupting frequently to challenge them and to test their own ideas.
Theodore Olsen, a former U.S. solicitor general, represented Citizens United. The primary duty of the Office of the Solicitor General is to represent the interests of the government in the Supreme Court. He was an experienced hand, but this day he represented not the government, but the group that challenged its laws. “Participation in the political process is the First Amendment’s most fundamental guarantee,” he began. “Yet that freedom is being smothered by one of the most complicated, expensive, and incomprehensible regulatory regimes ever invented by the administrative state.”18 He was quickly and frequently challenged by the Court’s liberal justices, who wanted to know why the law, in their eyes a good law, should be interpreted to allow Citizens United to broadcast Hillary: The Movie.
“So how would we draw the line?” asked Justice David Souter.19 Olsen tried to portray the film as ordinary journalism. It was “a long discussion of the record, qualifications, history, and conduct of someone who is in the political arena,” and not the kind of “short, punchy” advocacy ad that Congress intended to prohibit.20 The liberals were skeptical. Justice Souter characterized its contents: “She will lie about anything. She is deceitful. She is ruthless, cunning, dishonest, [will] do anything for power, will speak dishonestly, reckless, a congenital liar, sorely lacking in qualifications, not qualified as commander in chief. I mean, this sounds to me like campaign advocacy,” he said.21
Next, Malcolm L. Stewart, the government’s lawyer, rose to defend the election laws. It would not go well. He suggested that if there was “no reasonable interpretation” of a movie or ad other than “as an appeal to vote for or against a specific candidate” it was an electioneering communication.22 Quickly, the conservatives rose like wasps. “If,” asked Chief Justice John Roberts, “Walmart airs an advertisement that says we have candidate action figures for sale, come buy them, that counts as an electioneering communication?” “If,” replied Stewart, “it’s aired at the right place at the right time, that would be covered.”23 It made the law sound ridiculous.
Then Justice Samuel Alito asked if the Constitution would permit restricting access to a book with contents similar to Hillary. “I think,” replied Stewart “the Constitution would have permitted Congress to apply the electioneering communications restrictions … to additional media as well.”24 This was a huge blunder. The government’s position now embraced book banning, a timeless metaphor for the evils of censorship. “That’s pretty incredible,” responded Justice Alito.25 Justice Anthony Kennedy asked if satellite downloads to a Kindle could be prohibited, and Stewart was forced to admit that the electioneering statute applied to satellite communications. The book ban metaphor hung over the rest of the argument like a dark cloud. It was a turning point in the case and for American election law.
Citizen’s United had a good day. At the end of the argument, the case was submitted for the Court’s opinion. However, three months later the Court surprised both sides with an unusual call for the case to re reargued.26 This time, it asked the parties to focus on whether the ban on independent expenditures by corporations upheld in Austin and the ban on electioneering communications upheld in McConnell were constitutional under the First Amendment. This signaled that the Court’s conservatives were ready to find that the founders words in the First Amendment disallowed restrictions on independent expenditures. If so, a venerable pillar of congressional efforts to limit corporate money in elections would fall.
Reargument was held on September 9, 2009. Again, Theodore Olsen rose on behalf of Citizens United with strong, resounding, principled words. “Robust debate about candidates for elective office is the most fundamental value protected by the First Amendment’s guarantee of free speech,” he said. “Yet that is precisely the dialogue that the government has prohibited if practiced by unions or corporations.”27
The Court’s liberals tried to tone down his argument. Justice Ruth Bader Ginsburg remarked that corporations were not prohibited from advocacy in elections, they could always speak using political action committees. Justice Stephen Breyer warned against making “a hash of this statute.”28 Justice John Paul Stevens said it was possible to draw lines between permissible and impermissible corporate advocacy. They wanted to save the law from a fatal date with First Amendment ideals. Olsen held his ground.
Next, Solicitor General Elena Kagan, a future Supreme Court justice, rose to speak for the government. “For over 100 years,” she began, “Congress has made a judgment that corporations must be subject to special rules when they participate in elections and this Court has never questioned that judgment.”29 She got no farther. “Wait, wait, wait, wait,” interjected Justice Antonin Scalia. “We never questioned it, but we never approved it either.”30 Technically this was correct. The Supreme Court must wait for cases to come before it; it cannot make law except out of a controversy duly brought before it. And no prior case had directly raised the question of the constitutionality of corporate independent expenditures.
Scalia’s correction was just the beginning. The other conservatives swarmed in with sharp, dogged questions and stinging rebukes. When asked if the statute could be used to ban a book, Kagan answered, “The FEC has never applied this statute to a book.” But, scolded Chief Justice Roberts, “we don’t put our First Amendment rights in the hands of bureaucrats.”31
No evidence or argument swayed the conservatives. Not even the prospect of corruption phased them. Justice Alito noted that “more than half the States … permit independent corporate expenditures,” and asked, “Now have they all been overwhelmed by corruption?” “I think,” replied Elena Kagan, “the experience of some half the States cannot be more important than the 100-year-old judgment of Congress that these expenditures would corrupt the Federal system.”32 But she would win no converts this day.
On January 21, 2010, the Court issued its decision, striking down as unconstitutional the bans on independent expenditures and electioneering communications by corporations. It was a split 5–4 decision set forth in 187 pages with five separate opinions including a 57-page majority opinion, a 90-page dissent, and three shorter concurring opinions.
Justice Anthony Kennedy wrote the majority opinion in which Chief Justice Roberts and Justices Alito, Scalia, and Thomas joined. It began by explaining why no exception from the government’s ban on independent expenditures for advocacy could be made for Hillary. The film was an electioneering communication because there were 34.5 million cable subscribers and it would reach 50,000 or more voters. It was “in essence … a feature-length negative ad,” not a journalistic documentary.33 And the Court refused to make an exception for it just because only a small fraction of the film’s budget came from corporations. It would put the Court on a road to endless drawing and redrawing of constitutional lines.
In short, the Court could not save the statute by narrowing its application “without chilling political speech, speech that is central to the meaning and purpose of the First Amendment.”34 There were too many problems. If it made an exception for Hillary it would extend a situation where speakers were often uncertain if their speech was or was not a crime under the law. It would take time to examine claims for exceptions, thus chilling speech just before elections. And the existing campaign finance rules, made up of 568 pages of regulations, 1,278 pages of guidance, and 1,771 FEC advisory opinions were, essentially, a complex censorship scheme that acted as a prior restraint on speech. Put this way, the body of election law that had grown over more than 100 years was no longer the edifice supporting free and fair elections, but a menace to the founders’ ideals.
From here the majority marched to its conclusion. “The law before us is an outright ban, backed by criminal sanctions,” wrote Kennedy.35 First Amendment protection extends to corporations. Speech has never been and should not be banned based on the identity or wealth of the speaker. Allowing corporations to speak through political action committees restricts their speech because such committees are burdensome and expensive to administer. Finally, there is no evidence that independent expenditures by corporations, unlike direct contributions to candidates, leads to quid pro quo corruption of officials.
Therefore, the Court struck down as unconstitutional the part of §441(b) of the Federal Election Campaign Act (see the previous box) that prohibited corporate independent expenditures. That forced it to overrule the 1990 Austin decision, which had upheld the constitutionality of a ban on independent expenditures by corporations.
It also struck down §434 (see the previous box), the ban on electioneering communications added by the McCain-Feingold amendments. That required overruling the part of its 2003 McConnell decision upholding §434’s constitutionality. However, the Court kept the disclosure and disclaimer requirements in the law that Citizens United disliked.
It was a principled opinion that sought to remove inroads on free, unlimited political debate. With their intrusive restrictions, well-meaning legislators had created an annoying censorship regime posing greater and more fundamental dangers to American democracy than any unproved evil of corruption. In consequence, corporations and unions are now free to make independent expenditures, spending as much as they wish on any form of political advertising anytime. They can “speak” more freely.
Justice John Paul Stevens wrote the dissent in which Justices Ginsburg, Breyer, and Sotomayor joined. Stevens was the Court’s oldest justice at age 89 and its most senior, having served 35 years since President Gerald Ford nominated him in 1975. The 87-page dissent was the longest he had ever written. That was one measure of his displeasure with the majority.
Justice Stevens began by observing that Citizens United had been free to show Hillary as much as it wanted anytime except 30 or 60 days before elections. Using its political action committee, it could even have shown it at those times. So there was no speech ban.
Next, he attacked the majority for its belief that the First Amendment prohibited government from restricting speech based on a speaker’s identity as a corporation. “Absurd,” he wrote. “Such an assumption would have accorded the propaganda broadcasts to our troops by ‘Tokyo Rose’ during World War II the same protection as speech by Allied commanders.”36 He argued that corporations are artificial entities, “not members of We the People,” and not the individuals whose self-expression the First Amendment was written to protect. “Corporations,” he wrote, “have no consciences, no beliefs, no feelings, no thoughts, no desires.”37 They participate in elections solely based on their economic self-interest.
He believed the decision was “a radical departure,” a “dramatic break from our past,” that “threatens to undermine the integrity of elected institutions across the Nation.” It “makes a hash” of the “delicate and interconnected regulatory scheme” created by Congress.38
It threatened to produce corruption. “Our lawmakers,” he wrote, “have a compelling constitutional basis, if not also a democratic duty to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races.”39 There are many kinds and degrees of corruption. Corporations have large sums to spend buying access and buying votes. Evidence showed that issue ads bought significant influence.
The sponsors of these ads were routinely granted special access after the campaign was over; candidates and officials knew who their friends were … Many corporate independent expenditures, it seemed, had become essentially interchangeable with direct contributions in their capacity to generate quid pro quo arrangements … politicians who fear that a certain corporation can make or break their reelection chances may be cowed into silence about that corporation.40
It was an impassioned dissent, rich with the wisdom of 35 years on the bench and he crowned it with a jewel of sarcasm: “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.”41
President Barack Obama was displeased. “With its ruling today, the Supreme Court has given a green light to a new stampede of special interest money in our politics.”42 Sen. John McCain was “disappointed” and Rep. Russ Feingold saw it as “a terrible mistake.”43 The liberal press portrayed it as a disaster. A headline in The New York Times read, “Lobbies’ New Power: Cross Us, and Our Cash Will Bury You.”44 A columnist in the Washington Post imagined the worst.
Think of this rather persuasive moment in a chat between a corporate lobbyist and a senator: “Are you going to block that taxpayer bailout we want? Well, I’m really sorry, but we’re going to have to run $2 million worth of really vicious ads against you.”45
The progressive community felt threatened. Ralph Nader predicted that “[b]ig business domination of Washington will now intensify,”46 and The Nation saw “a dramatic assault on American democracy.”47 But conservatives disagreed. Columnist George Will was glad to see that “the decades when the court was derelict in its duty to actively defend the Constitution” had ended and it had overturned “a censorship regime.”48 “Freedom had its best week in many years,” editorialized the Wall Street Journal, “Congress’s long and misbegotten campaign-finance crusade has reached a Constitutional dead end.”49
The full consequences of Citizens United will not be known for years. Corporations may not react as cynics fear. For instance, conspicuous support or opposition for candidates could backfire. Both Republicans and Democrats buy cars, soft drinks, and computers, shop in department stores, eat at fast food chains, and select airlines and hotels. Few corporations would risk partisan labels. They may, however, push their advocacy through trade associations and front groups with innocuous names.
In his 2010 State of the Union address, President Obama looked down at the justices and, expressing distaste for their decision, called on Congress to correct the “problems” the Court had created. Since then, the following actions have been considered.50
Pass a constitutional amendment. Several have been suggested including (a) giving Congress the power to regulate corporate expenditures, (b) prohibiting corporations from using general treasury funds in elections, (c) prohibiting all corporate political activity, and (d) defining a corporation as an artificial entity to which First Amendment rights do not apply. To go into effect, an amendment would require two-thirds approval in both the Senate and the House and ratification by three-fourths of state legislatures within seven years.
Require shareholder approval, by majority vote, of all corporate political expenditures over a certain amount. It is likely in the wake of the decision that progressive shareholder activists will push for such a policy.
Create public funding for elections. Candidates would receive government funds for their campaigns. If these funds were sufficient, candidates could rely on them for election or reelection and would not need or fear expenditures by corporate interests.
Ban foreign contributions. Critics say the decision would permit foreign corporations or U.S. corporations with foreign owners to influence elections. Election law prohibits foreign nationals from contributing to candidates or directing expenditures, but U.S. citizens in foreign-owned or controlled firms could direct political activity.
Was Hillary: The Movie a disguised campaign ad or a journalistic documentary? Should the Court have created an exception in the law to permit its broadcast? What could it have done?
Should the First Amendment protect corporate political expression? If not, where should the line be drawn for corporations between freedom and restrictions? Should First Amendment protections apply only to individual citizens?
If you were on the Supreme Court would you have voted in the majority or joined the dissent? Why?
After Citizens United are the rules for corporate participation in elections still too strict, about right, or too relaxed? Why?
Should Congress legislate in response to Citizens United? If so, what should it do?