Summary

Citizens United v. FEC (2010), was a U.S. Supreme Court case that established that section 203 of the Bipartisan Campaign Reform Act (BCRA) violated the first amendment right of corporations. Section 203 stated that “electioneering communication as a broadcast, cable, or satellite communication that mentioned a candidate within 60 days of a general election or 30 days of a primary, and prohibited such expenditures by corporations and unions.” The case surrounded the question of whether Citizens United was allowed to air the film Hillary: The Movie days before the 2008 election. This Supreme Court case was significant because it changed how corporations could use their money for elections as well as it made part of the BCRA unconstitutional.

Timeline 1

Background

Citizens United is a conservative nonprofit corporation that released a documentary entitled Hillary: The Movie. In 1976, the case of Buckley v. Valeo, held that limits on individual donations to political campaigns and candidates did not violate the First Amendment but limiting candidates from using their own personal or family funds, and limiting total campaign spending did violate the First Amendment. The Bipartisan Campaign Reform Act, passed in 2002, placed a ban on corporate and union contributions and expenditures in relation to political elections. In Section 203 of the act, it mentions “electioneering communications.” Electioneering communications is described as “any broadcast, cable, or satellite communication” that “refers to a clearly identified candidate for Federal office.” Another case that used this Reform Act and specifically Section 203, was McConnell v. Federal Election Commission.The documentary was highly critical of Sen. Hillary Clinton. The objective behind the documentary was to have the film on video demand services, which was released during the 2008 election year. They also wanted the documentary to be advertised during television commercials. Knowing that the Federal Election Commission would impose penalties, Citizens United sought an injunction that would prohibit FEC from imposing any penalties. The Citizens United organization held on to the idea that the Section 203 was unconstitutional and that their documentary did not express a position for or against a candidate.

Procedural History

Citizens United sought an injunction against the Federal Elections Commission (FEC) on December 2007
Argued that § 441b of the Bipartisan Campaign Reform Act of 2002 (BCRA) was unconstitutional for their documentary titled Hillary
The district court denied this injunction
They then argued that BCRA § 311, § 441d(a)(3), § 434(f)(1), and § 434(f)(2), were unconstitutional
The district court ruled against Citizens United again
Citizens United appealed to the Supreme Court
In march 2009 the Court heard two issues
- was the prohibition of corporation spending violate their First Amendment right to freedom of speech
- Constitutionality of BCRA’s disclaimer, disclosure, and reporting requirements
It was reheard on September 2009 to answer whether two previous court rulings should be overruled
- Austin v. Michigan Chamber of Commerce
- McConnell v. Federal Elections Commission
The ruling came on January 2010
- Overruled Austin v. Michigan Chamber of Commerce
- Overruled parts of McConnell v. Federal Elections Commission
- Ruled that a ban on independent expenditure is a ban on the first Amendment’s right of freedom of speech
- Ruled that BCRA’s disclaimer, disclosure, and reporting requirements were constitutional and applied to Hillary

Issues

There were two issues involved in this case:

Did the Bipartisan Campaign Reform Act of 2002 (BCRA), section 203, violate the first amendment right of freedom of speech of corporations, regarding the movie and the advertisements related to it?
Were the BCRA’s disclaimer, disclosure, and reporting requirements constitutional?

Decision

The court held on the first issue that the BCRA section 203 violates Citizens United right to free speech, because it is protected under the first amendment. on the second issue, the court found that the BCRA’s disclaimer, disclosure, and reporting requirements were constitutional because they must keep citizens informed on election-related spending resources. It ultimately came to a 5-4 decision. The majority opinion was written by Justice Anthony Kennedy joined in full by Chief Justice John G. Roberts, Jr., Justices Antonin Scalia and Samuel A. Alito and in part by Justice Clarence Thomas. Justice John Paul Stevens’ dissenting opinion was joined by Justices Stephen Breyer, Ruth Bader Ginsburg, and Sonia Sotomayor.

Majority Opinion (Kennedy)

Justice Kennedy wrote the majority opinion. The Supreme Court ruled that the BCRA section 203 violated the first amendment. They declared that the BCRA section which, “prevents corporations or labor unions from funding such communication from their general treasuries, violates the freedom of speech that’s protected in the first amendment.” The first amendment does not distinguish between media and other corporations. So the BCRA prevention allowed a suppression of political speech in newspapers, television, etc, which according to the first amendment is unconstitutional. Corporations which serve as an association of individuals, giving them the same rights under the first amendment. The court rulings in this case freed up corporations to be able to spend funds on electioneering communications and to advocate for the election or defeat of candidates.

Dissenting In Part Opinion (Thomas)

Justice Thomas wrote a dissenting opinion where he disagrees with part IV(4) of the court’s opinion due to the fact that the analysis that was used does not extend far enough on certain issue in disclosure requirements in BCRA 201 and 311. He states that the requirements are unconstitutional in light of recent events where donors are threatened, blacklisted and in some cases in danger for retaliation. He states, “The Court properly recognizes these events as causes for concerns, but fails to recognize their constitutional significance.” In the dissent he briefly iterates about the Proposition 8 supporters who faced damage on their property, as well as death threats from having their addresses listed on public websites due to legislation were any donor who gave more than $100 had to have their full name, address, occupation and employer listed as well as the total amount of the contribution. Their were also various cases were individuals who supported Proposition 8 lost employment due to un-confidentiality of their donations in support of the legislation.

Concurring Opinion (Roberts)

Concurring Opinion (Scalia)

Dissenting In Part Opinion (Stevens)

Full Text of Case Opinions

Significance / Impact

Citizens United v. FEC had an impact on past rulings as well as future campaign advertising. First, this case was not won by Citizens United in lower courts because of previous rulings that worked as precedent for this case. However, after the Supreme Court overruled the previous holding of this case, they had to overturn the previous holdings in Austin v. Michigan Chamber of Commerce, which held that prohibiting corporations from using treasury money to support or oppose a candidate during elections did not violate the first of fourteenth amendment; and they had to overturn a part of McConnell v. Federal Election Commision, which held that not all political speech was protected by the first amendment. One law that was significantly reformed was the The Bipartisan Campaign Reform Act of 2002 which prohibited corporations from broadcasting election related media within 60 days of general elections and 30 days within primary election, the supreme court held that this part of the act violated the first amendment of the United States Constitution.

This case did not only impact past rulings and future campaigns, it also gave way to the creation of organizations such as Super PACs (Political Action Committees). These committees can receive unlimited donations and in 2012 accounted for almost half of the outside money used in the 2012 election cycle. These Super PACs have been found to help candidates that otherwise would not have won previously through financing negative advertising against the opposing candidate. One case of a Super PAC that was widely known was the “Americans for a Better Tomorrow, Tomorrow” created by Stephen Colbert where he used the money gained by the Super PAC to purchase advertisements during the 2012 presidential campaign, and he then transferred the Super PAC to a business partner so that he, Colbert, could start his own presidential campaign, which was short lived.

So far, the biggest outcome of this Supreme Court case is the loopholes that election candidates have been able to find in order to create funds for their campaigns, including the use of Super PACs even though they are legally not associated with each other. This has been linked to why the 2012 election cycle (presidential and congressional) was the most expensive election in history costing around $6 billion and how candidates have been able to win when they were not favored at the beginning of their campaigns. `

Timeline 2

Constitutional Provisions

The first amendment’s freedom of speech

Government Law or Action Under Review

The Bipartisan Campaign Reform Act
United States Constitution, Amendment 1

Important Precedents

SpeechNow v. FEC (2010)
Buckley v. Valeo (1976)

Important Subsequent Cases

Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett (2011)
Western Tradition Partnership, Inc. v. Montana (2011)
McCutcheon v. FEC (2014)

Non-Academic Web Resources

Chicago-Kent College of Law at Illinois Tech. “Citizens United v. Federal Election Commission.” Oyez. Click Here for Access (accessed February 12, 2017).

Encyclopædia Britannica, inc. “Citizens United v. Federal Election Commission.” Encyclopædia Britannica. Click Here for Access (accessed February 12, 2017).

Adam Liptak, “Justices, 5-4, Reject Corporate Spending Limit” The New York Times, January 21, 2010, accessed February 12, 2017, Click Here for Access.

“Citizens United v. FEC.” The Campaign Legal Center. Click Here for Access.

Potter, Trevor. “Here’s what I learned when I helped Stephen Colbert set up his Super PAC” The Washington Post, January 21, 2015, accessed February 12, 2017, Click Here for Access.

The Editors of Encyclopædia Britannica. “Stephen Colbert.” Encyclopædia Britannica. September 09, 2015. Accessed February 18, 2017. Click Here for Access.

Academic Books, Articles and Law Reviews

2010. “Citizens United V. FEC: Corporate Political Speech.” Harvard Law Review (The Harvard Law Review Association) 124 (1): 75-82. Click Here for Access.

Doyle, Sady. 2012. “United Citizens vs. Citizens United.” Political Science Database (In These Times) 36 (3): 21. Click Here for Access.

Hasen, Richard L. 2011. “”Citizens United” and the Illusion of Coherence.” Michigan Law Review (TheMichigan Law Review Association) 109 (4): 581-623. Click Here for Access.

Krumholz, Sheila. “Campaign Cash and Corruption: Money in Politics, Post-Citizens United.” Social Research 80, no. 4 (2013): 1119-134. Click Here for Access.

McConnell, Michael W. 2013. “Reconsidering “Citizens United” as a Press Clause Case.” The Yale Law Journal (The Yale Law Journal Company, Inc.) 123 (2): 412-458. Click Here for Access.

Contributors

Spring 2017: Rossanna Hernandez Mitchell, Juan D. Marin, Brice E. Anderson, Patrick Bellefleur jr., London Delks.

Tasks for Future Contributors

Arguments by Petitioner (or Appellant or Plaintiff or Prosecution)
Arguments by Respondent (or Appellee or Defendant)
Decision Analysis
Scholarly Commentary and Debate
Concurring Opinion (Roberts)
Concurring Opinion (Scalia)
Dissenting In Part Opinion (Stevens)