Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), is a landmark decision of the Supreme Court of the United States ruling that certain campaign finance restrictions are inconsistent with the Free Speech Clause of the First Amendment. The court struck down Section 203 of the Bipartisan Campaign Reform Act, which prohibited "electioneering communications" paid for by corporations, labor unions, and other organizations. The Supreme Court ruled in favor of Citizens United in a 5-4 decision, with Justice Anthony Kennedy writing the majority opinion. All Democratic-appointed justices dissented.
The Supreme Court's ruling in favor of Citizens United sparked significant controversy, with some viewing it as a defense of American principles of free speech and a safeguard against government overreach, and others criticizing it for reaffirming the longstanding principle of corporate personhood, and for allowing large corporations to wield disproportionate political power by allowing them to spend unlimited amounts of money to support their chosen political candidates, provided the corporations were technically independent of the campaigns.
Kennedy's opinion holds that the prohibition of all independent expenditures by corporations and unions in the Bipartisan Campaign Reform Act violated the First Amendment.Citizens United v. Federal Election Com'n, 558 U.S. 310 (S. Ct., 2010). The ruling bars restrictions on corporations', unions', and nonprofit organizations' independent expenditures, allowing groups to independently support political candidates with financial resources. In his dissent, Justice John Paul Stevens wrote that the ruling represented "a rejection of the common sense of the American people."
Reactions to the decision were sharply divided. Typical were those of Senator Mitch McConnell, who called the decision "an important step in the direction of restoring the First Amendment rights", and of President Barack Obama, who said the decision "gives the special interests and their lobbyists even more power in Washington".
Background The Bipartisan Campaign Reform Act of 2002, commonly known as the McCain–Feingold Act or "BCRA", prohibited "electioneering communications" paid for by incorporated entities. These were defined as broadcast advertisements mentioning a candidate by name within 30 days of a primary election or 60 days of a general election, and reaching at least 40,000 people in the relevant electorate. During the 2004 presidential campaign, Citizens United, a conservative, nonprofit advocacy organization, filed a complaint with the Federal Election Commission (FEC) charging that advertisements for Michael Moore's film Fahrenheit 9/11, a docudrama critical of the Bush administration's response to the terrorist attacks on September 11, 2001, constituted "electioneering communications" and thus could not be aired 30 days before a primary election or 60 days before a general election. The FEC dismissed the complaint after finding no evidence that advertisements featuring a candidate within the proscribed time limits had actually been made.FEC finding August 6, 2004. Citizens United later produced a documentary, Celsius 41.11, that criticized both Fahrenheit 9/11 and 2004 Democratic presidential nominee John Kerry. The FEC, however, held that showing Celsius 41.11 or advertisements for it during the 60 days before the election would violate the Federal Election Campaign Act, because Citizens United was not a bona fide commercial filmmaker."Advisory Opinion 2004-30" Federal Election Commission, September 10, 2004.
In the wake of these decisions, Citizens United sought to establish itself as a bona fide commercial filmmaker before the 2008 elections, producing several documentary films. During the 2008 political primary season, it sought to run three television advertisements to promote its political documentary Hillary: The Movie, a film critical of Hillary Clinton, and to air the movie on DirecTV. Based on the FEC's 2004 decision, Citizens United feared that the FEC would hold that its ads and payments to DirecTV violated BCRA—specifically, Section 203, which defined an "electioneering communication" as a broadcast, cable, or satellite communication that mentions a candidate within 60 days of a general election or 30 days of a primary, and prohibited such expenditures by corporations and labor unions. Citizens United filed for declaratory and injunctive relief in federal court.
District Court proceedings In December 2007, Citizens United filed a complaint in U.S. District Court for the District of Columbia challenging the constitutionality of several statutory provisions governing "electioneering communications". It asked the court to declare that the prohibition on corporate and union funding were both facially unconstitutional and unconstitutional as applied to Hillary: The Movie and 30-second advertisements for it, and to enjoin the Federal Election Commission from enforcing its regulations. Citizens United also argued that the commission's disclosure and disclaimer requirements were unconstitutional as applied to the movie pursuant to the Supreme Court decision Federal Election Commission v. Wisconsin Right to Life, Inc. and sought to enjoin those requirements.
In accordance with Section 403 of the BCRA, a three-judge panel convened to hear the case. On January 15, 2008, the court denied Citizens United's motion for a preliminary injunction, finding that Citizens United was unlikely to succeed on the merits because the movie had no reasonable interpretation other than as an appeal to vote against Hillary Clinton. It held that the film constituted express advocacy of the election or defeat of a candidate and was not entitled to exemption from the ban on corporate funding of electioneering communications. The court upheld the relevant disclosure provisions on the basis of the Supreme Court decision McConnell v. FEC (2003), which found BCRA's disclosure requirements constitutional. It distinguished the Wisconsin Right to Life precedent as only addressing speech not considered express advocacy of the election or defeat of a candidate.
On July 18, 2008, the District Court ruled that Section 203 of the BCRA prohibited Citizens United from paying to have the film shown on television within 30 days of the 2008 Democratic primaries. But it also ruled that Citizens United could broadcast advertisements for the film, as they fell in the "safe harbor of the FEC's prohibition regulations".
In accordance with the special rules in BCRA, Citizens United appealed the District Court decision directly to the U.S. Supreme Court.
Arguments before the Supreme Court Arguments before the Supreme Court began on March 24, 2009. During the original oral argument, Deputy Solicitor General Malcolm L. Stewart (representing the FEC) argued that under Austin v. Michigan Chamber of Commerce in 1990, the government may ban books if those books contain content expressly advocating the election or defeat of a candidate and were published or distributed by a corporation or labor union. Stewart further argued that under Austin the government may ban the digital distribution of political books on the Amazon Kindle or prevent a union from hiring an author to write a political book.
Justice Kennedy later said, "all of us are concerned with money in politics". But he said he was shocked that "the government of the United States ... argued before the Supreme Court ... that if there was an upcoming political campaign ... and a book was being published ... and it was critical of a candidate, that [the government] could stop publication".
According to a 2012 article in The New Yorker by Jeffrey Toobin, the court planned to rule on the narrow question that had originally been presented: May Citizens United show the film? At the conference among the justices after oral argument, the vote was 5–4 in favor of allowing Citizens United to do so. The justices voted the same as they had in Federal Election Commission v. Wisconsin Right to Life, Inc.
Chief Justice John Roberts wrote the initial opinion of the court, holding that BCRA allowed the film to be shown. A draft concurring opinion by Justice Kennedy argued that the court should have gone much further. The other justices in the majority agreed with Kennedy's reasoning, and convinced Roberts to reassign the opinion and allow Kennedy's concurrence to become the majority opinion. The senior justice in the minority, John Paul Stevens, assigned the dissenting opinion to David Souter. Souter completed the task shortly before retiring from the court. According to Toobin, Souter's dissent went beyond critiquing the majority to air "some of the Court's dirty laundry", accusing Roberts of having manipulated court procedures to reach his desired result—an expansive decision that changed decades of election law and ruled on issues neither party to the litigation had presented. According to Toobin, Roberts agreed to withdraw the opinion and schedule the case for re-argument. But when he did, the questions presented to the parties were more expansive, touching on the issues Kennedy's opinion had raised.
The court issued an order directing the parties to reargue the case on September 9, 2009, with a discussion of whether it might be necessary to overrule Austin and/or McConnell v. FEC to decide the case. The reargument was one of the first attended by Justice Sonia Sotomayor, who had replaced Souter in the interim. It was also the first case argued by then-Solicitor General and future Supreme Court Justice Elena Kagan. Former Solicitor General Ted Olson and First Amendment lawyer Floyd Abrams argued for Citizens United, and another former solicitor general, Seth Waxman, defended the statute on behalf of various supporters. Legal scholar Erwin Chemerinsky called it "one of the most important First Amendment cases in years".
Opinion of the court On January 21, 2010, the court issued a 5–4 decision in favor of Citizens United that struck down the BCRA restrictions on independent political expenditures by corporations as violations of the First Amendment, reversing the District Court opinion.
Majority opinion
The majority opinion was by the moderate Justice Anthony Kennedy, who chose to align with the more conservative justices. The court held that BCRA Section 203's prohibition of all independent political expenditures by corporations and unions violated the First Amendment's protection of free speech.Syllabus : Citizens United v. Federal Election Commission, Supreme Court of the United States. Kennedy wrote, "If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech." He also wrote that because the First Amendment does not distinguish between media and other corporations, the BCRA restrictions improperly allowed Congress to suppress political speech in newspapers, books, television, and blogs. But, Kennedy wrote, "There is no such thing as too much speech."