Citizens United Decision: Free Speech and Campaign Finance

Background and Overview of the Case

In Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), the Supreme Court was asked to decide a critical question about campaign finance laws, specifically the Bipartisan Campaign Reform Act (BCRA). Under § 203 of the BCRA, corporations and unions were prohibited from funding electioneering communications — defined as communications that mentioned a candidate and were broadcast on television, cable, or satellite within 60 days of a general election or 30 days of a primary.

The actual controversy in the case involved the nonprofit group Citizens United, which wanted to air a film criticizing Hillary Clinton and to advertise that film during television broadcasts. The Federal Election Commission prohibited this as a violation of § 203. Citizens United sought review of that decision. Eventually, the Supreme Court determined that the provisions of § 203 prohibiting corporations and unions from funding electioneering communications were unconstitutional.

This marked a significant change in U.S. election law, as prior decisions had prohibited direct corporate contributions of the kind at issue in Citizens United. However, the case did not affect the legality of direct contributions from corporations or unions to candidate campaigns or political parties — those remain illegal in federal elections. Moreover, the Court upheld the sections of the BCRA that require the sponsors of election advertisements to disclose who produced the message (Citizens United, 558 U.S. 310 (2010)).

How Citizens United Changed First Amendment Law

Almost immediately, commentators, pundits, and members of the general public began to denounce the decision. Up until this ruling, the protections extended by the Bill of Rights had generally been considered personal rights belonging to individual citizens. While groups had previously been successful in challenging laws that seemed to prohibit their collective speech, those cases all turned on the individual free speech interests at stake.

Citizens United changed the free speech landscape in two specific ways. First, it significantly broadened the First Amendment's free speech protections, equating corporations and other legally fictitious persons with actual people and granting these entities constitutional protections. Second, it equated money with speech, so that the right to spend money was treated as equivalent to the right to engage in expression. To many observers, this amounted to tacit approval by the Supreme Court for elections to be purchased.

Arguments in Support of the Decision

Not everyone was critical of the decision. Senator Mitch McConnell, one of the parties who sought to have the law deemed unconstitutional, believes the Supreme Court reached the appropriate result. In an article co-written with Floyd Abrams — the attorney who represented McConnell in the dispute — he made several salient points in defense of the ruling.

First, McConnell and Abrams noted that the campaign finance laws had been criticized by a wide variety of special-interest groups that typically hold very diverse views on constitutional issues, including the ACLU, the NRA, the AFL-CIO, and the U.S. Chamber of Commerce (McConnell and Abrams, 2010). Second, they emphasized that political speech — precisely the category of expression that has always received the highest degree of First Amendment protection — was the speech at issue in the underlying dispute.

In many ways, McConnell and Abrams make a compelling case. The documentary in question was a highly critical piece with the clear goal of dissuading voters from supporting Hillary Clinton. It was set to air during the 30-day period prior to the primary, and its funding came in part from corporate contributions, meaning it clearly violated BCRA § 203. Their argument is that, regardless of the source, political speech is of such critical value to society that it should always be protected (2010). Moreover, while the documentary was produced by the political right, they pointed out that BCRA § 203 had equally constrained speech on the left. Because corporations and unions are, in essence, collections of individual citizens, they contend the decision ultimately reinforced the individual right to free speech.

Conclusion

Fred Wertheimer's concern that "the decision will unleash unprecedented amounts of corporate 'influence-seeking' money on our elections and create unprecedented opportunities for corporate 'influence-buying' corruption" may have seemed alarmist when he wrote it in 2010, but subsequent presidential elections and the enormous volume of corporate money flowing into them demonstrated exactly that phenomenon (Wertheimer, 2010). In protecting the theoretical free speech rights of corporations, the Supreme Court has, in practice, diminished the real political power of the individual American voter — honoring the text of the First Amendment while undermining the democratic values it was designed to protect.

References

Citizens United v. Federal Election Commission, 558 U.S. 310 (2010).

McConnell, Mitch, and Floyd Abrams. "Pro & Con: Is the Supreme Court's Ruling on Campaigns Bad for Democracy? No: Free Speech, No Matter the Speaker, Is What Our Constitution Protects." The Atlanta Journal-Constitution. Accessed December 5, 2012.

Wertheimer, Fred. 2010. "Pro & Con: Is the Supreme Court's Ruling on Campaigns Bad for Democracy? Yes: Turning Clock Back 100 Years, Decision Will Corrupt Government." The Atlanta Journal-Constitution. Accessed December 5, 2012.