The Louisville Political Review looks at monumental court cases that have defined the political sphere. Today we examine Citizens United v. Federal Election Commission and its societal impact on civil liberties.
The Supreme Court of the United States is an often misunderstood institution of our government. Their contentious decisions tend to be even more misunderstood by the public. These misunderstandings can be due to the complicated nature of a case, but also unfair narratives pushed by politicians and the media onto the public. When the decision for the Supreme Court case of Citizens United v. Federal Election Commission (2010) was handed down, it was characterized by President Barack Obama, the Democratic Party, and many others as a destruction of democracy and a victory for the ominous “special interests.” The narrative was that the Supreme Court arbitrarily decided to declare corporations as people, and consequently opened the floodgates for corruption and corporate dominance over elections and politicians. In reality, the decision was a reaffirmation of the First Amendment’s protection of free speech for associations of people and the ability for them to effectively communicate their political beliefs. Citizens United was a victory for free speech over the unconstitutional censorship imposed on organizations by powerful politicians and federal bureaucrats.
The History of Campaign Censorship and Citizens United
What is a corporation? A corporation is a legal entity that holds rights and responsibilities similar to individuals, but varies in structure and is distinct from its owners and managers. A labor union, on the other hand, is an unincorporated association of individuals organized to advocate for employees. Both of these associations of individuals were barred from engaging in certain “electioneering communications” by the Bipartisan Campaign Reform Act (BCRA) of 2002. Along with mandatory disclosure of donors and disclaimer of non-affiliation with a particular candidate, the BCRA prevented these organizations from spending their general funds on “any broadcast, cable, or satellite communication” that refers to a candidate for Federal office, is made within 30 days of a primary election or 60 days of a general election, or simply “promotes or supports a candidate for that office, or attacks or opposes a candidate for that office.”
In January 2008, the Democratic Presidential primaries were set to take place. Former First Lady and U.S. Senator Hillary Clinton was one of the Democratic candidates for President. Citizens United was a conservative non-profit corporation that produced a documentary titled “Hillary: The Movie”, critical of Clinton and set to release right before the Democratic primaries. This documentary release would’ve violated the BCRA, as it would’ve fallen within the ban on electioneering communications made within 30 days of a primary. Concerned about facing civil and criminal penalties for the release, Citizens United sued, seeking declaratory (court judgment of controversy) and injunctive (restraint of action) relief against the Federal Election Commission (FEC), which intended to enforce BCRA against Citizens United.
Citizens United argued that the BCRA ban on certain corporate political speech violated the First Amendment, both on paper and in its application. The United States District Court for the District of Columbia rejected Citizens United’s argument and ruled in favor of the FEC, citing the precedents of Austin v. Michigan Chamber of Commerce (1990) and McConnell v. Federal Election Commission (2003), both of which upheld restrictions on political speech based on the speaker’s corporate identity. Following the loss, Citizens United appealed the case directly to the United States Supreme Court.
The Decision of the Court
In a narrow 5-4 ruling, the Supreme Court ruled in favor of Citizens United. While the Court sustained BCRA’s donor disclosure requirements and ban on direct contributions to candidates from corporations and unions, the majority ruled that BCRA’s restrictions of independent expenditures on political speech by corporations and unions violated the First Amendment’s right to free speech. In doing this, the Court overruled Austin v. Michigan Chamber of Commerce and portions of McConnell v. FEC. As a result, the Court restored the importance of the longstanding precedent of Buckley v. Valeo (1975), which held government restrictions on independent expenditures to be unconstitutional under the First Amendment.
Associate Justice Anthony Kennedy authored the majority opinion. He justified the departure from the precedents of Austin and McConnell by arguing that they were both a “significant departure from ancient First Amendment principles.” When confronting the speech restriction imposed by BCRA, Kennedy and the majority used the standard of “strict scrutiny”, requiring the Government to prove that the restriction “furthers a compelling interest and is narrowly tailored to achieve that interest.” The Government’s stated interest in fighting political corruption or at least avoiding the appearance of corruption, influence, or access was not compelling enough in the eyes of the Court to restrict the freedom of speech of these organizations. Kennedy asserted that “corporations and other associations, like individuals, contribute to the discussion, debate, and the dissemination of information and ideas that the First Amendment seeks to foster.” Kennedy further criticized BCRA’s use of government power to “command where a person may get his or her information or what distrusted source he or she may not hear” as “censorship to control thought.”
Associate Justice John Paul Stevens authored the sole dissenting opinion, joined by three other justices. Stevens relied heavily on the idea that despite their contributions to society, “corporations are not actually members of it.” He argued that corporations are unable to vote or run for office, and they can be managed and controlled by “nonresidents”. While this is all true, none of these facts seem relevant to the question of the constitutional validity of corporate speech, especially since they are all made up of individuals. Ironically, Stevens acknowledged and appreciated in the same opinion the expression of several nonprofits and business groups that were pushing for the Court to preserve BCRA. It is somewhat hypocritical to downplay the free speech rights of organizations, but then give weight to the opinions of favorable organizations.
Associate Justice Antonin Scalia wrote a concurring opinion, which joined the opinion of the majority, but aimed to critique Justice Stevens’ dissent. Scalia points out that Stevens failed to address the concept of pairing freedom of association with freedom of speech. Scalia agrees with Stevens’ assertion that Framers intended for the right to free speech to be held by individual Americans, but he makes clear that this individual right includes the “right to speak in association with other individual persons.”
Freedom of Speech Through Associations
“Corporations aren’t people.” This phrase was chanted by protestors, written on protest signs outside the Supreme Court, and repeated by Democratic politicians following the decision in Citizens United. They’re right. Corporations aren’t people and it would be absurd to claim that they are. However, the problem with this popular phrase criticizing Citizens United is that it oversimplifies the decision of the Supreme Court. Corporations are not people, but they are free associations of people.
The legal entity of a corporation is not limited to just the rich for-profit consumer corporations like Amazon or Google, but also non-profit political organizations like the American Civil Liberties Union (ACLU). The ACLU supported the Citizens United decision, recognizing the value of political speech of organizations made possible through independent expenditures, whether it comes from the non-profits of Planned Parenthood or the National Rifle Association, or the for-profits of General Motors or Microsoft. The ACLU stood firmly against “campaign finance regulation premised on the notion that the answer to money in politics is to ban political speech.”
Even the very organizations that aim to overturn Citizens United have benefitted from the protection of their political speech by the decision. “End Citizens United” is a non-profit corporation and multi-million dollar, progressive Political Action Committee. Despite its stated goals to “overturn Citizens United” and “end the unlimited and undisclosed money in politics”, it has become an influential organization engaged in the very same political speech via independent expenditures protected by the First Amendment thanks to the ruling in Citizens United.
In an era of “truth commissions” and misinformation, it is more important than ever to reexamine cases like Citizens United and grow in our understanding and appreciation of the First Amendment’s principles. Justice Scalia once said that “the premise of democracy is that people are intelligent and can discern the true from the false.” While neither democracy nor people are perfect, we must encourage the development of a free marketplace of ideas by individuals and associations rather than a heavily regulated one that defers to the government to decide the good from the bad.