The Supreme Court’s recent campaign finance decision, Citizens United v. FEC,1 has sparked a barrage of criticism from the liberal elite. Even President Obama took the time to criticize the case in his State of the Union address:
“With all due deference to separation of powers, last week, the Supreme Court reversed a century of law that I believe will open the floodgates for special interests, including foreign corporations, to spend without limit in our elections.” 2
Because of that misguided characterization, magnified by a liberal media, there has been a lot of confusion about this case. What follows, therefore, is a simple summary of the Court’s decision in an effort to shed some light on what the opinion actually says and, perhaps more importantly, what it does not say.
First, the case did not deal with direct campaign contributions to candidates. So do not be fooled by the pundits saying political candidates will be “like NASCAR drivers, wearing sponsors on their suits.” The law still bars those types of contributions and this case did not change that.
Second, this case did not deal with allowing foreign corporations to pour money into U.S. elections. The Court specifically said it was not dealing with that question.3 The ban on contributions and expenditures to foreign nationals is still part of the law.4
Third, I know many on the left use the “big scary corporation” chant to try to manipulate average citizens, but statistics give us a very different picture of American corporations. Most of them are relatively small corporations.
The Court pointed out that, “96% of the 3 million businesses that belong to the U.S. Chamber of Commerce have fewer than 100 employees.5 And, “more than 75% of corporations whose income is taxed under federal law have less than $1 million in receipts per year.”6
If “big money” is the problem, then corporations should not be the target. Actually, “[i]n the 2004 election cycle, a mere 24 individuals contributed an astounding total of $142million”7 to political organizations.
It is interesting how liberals feel it is okay for George Soros to have as much influence as he has, but if a group of everyday Americans ban together and form a non-profit corporation to make their voices heard, they feel the Government should be able to silence them.
In fact, that is what happened in this case. In January 2008, Citizens United, a nonprofit corporation, released a critical film about then-Democratic presidential primary candidate Hillary Clinton entitled Hillary: The Movie. Citizens United was preparing to offer the movie through a video-on-demand service and produced several ads to promote it.
However, the non-profit group feared federal law8 would ban both the movie and its ads. The law prohibited corporations and unions from using general treasury funds for “express advocacy” or “electioneering communications.”
Moreover, the law defined electioneering communications as “any broadcast, cable, or satellite communication” that “refers to a clearly identified candidate for Federal office” and is made within 30 days of a primary or 60 days of a general election.9
Fearing civil and criminal penalties,10 Citizens United sought declaratory and injunctive relief against the Federal Election Commission (FEC) arguing the law was unconstitutional as applied to the movie and the ads, and the disclaimer and disclosure requirements11 were unconstitutional as applied to the non-profit itself.
In its 5-4 opinion, the Supreme Court found the ban did indeed violate Citizens United’s constitutional rights, but found the disclaimer and disclosure requirements did not.
Justice Kennedy summarized what this case is really about when he 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.”
To be clear, the law at issue made it “a felony for all corporations-including nonprofit advocacy corporations-either to expressly advocate the election or defeat of candidates or to broadcast electioneering communications within”12 the specific period.
The dissent argued the law was not an outright ban but actually a “time, place, manner” restriction because the ban was limited to that 30-60 day period. That argument reminds me of an old family comedy show I watched growing up where the daughter would routinely ask her father if she could watch TV and the father would reply, “Sure, just don’t turn it on.”
I think we can all see why it would be “somewhat” important for us to be able to speak about a candidate in a race, while there is still a race.
The Court is unanimous in its belief that First Amendment protections are at their highest when protecting political speech and all Justices agree that the courts must apply strict scrutiny in such cases. That puts the burden on the government to show a compelling governmental reason for the law, while making sure the law is narrowly tailored and the least restrictive means of achieving that interest.
The government offered three interests, none of which was compelling, according to the Court. It argued it has an “antidistortion” interest, an “anticorruption” interest and a “shareholder-protection” interest.
On the first, the Court “rejected the premise that the Government has an interest ‘in equalizing the relative ability of individuals and groups to influence the outcome of elections.'”13 As we all know, in politics, one man’s “distortion” is another man’s reality and the government should not be in the business of taking sides with one view over another when it come to a political race.
On the second, the Court found no specific evidence of corruption and reminded the government that it cannot choose between speakers to avoid the appearance of corruption. The government cannot choose an unconstitutional remedy for an apparent problem.
Finally, the Court dismissed the shareholder-protection interest because, frankly, it does not pass the laughing test. The Court points out that the law would be way too broad for this and, if the government were really trying to protect shareholders with this law, then the time restriction makes no sense at all. “A shareholder’s interest would be implicated by speech in any media at any time.” 14
It is astonishing for me to hear liberals use this argument when they insist on making pro-life Americans pay for other peoples’ abortions with their taxes. But that is another topic for another day.
Bottom line is the government failed to show a compelling governmental interest that could come even close to justifying such a gross intrusion on the First Amendment’s freedom of speech.
Justice Kennedy summarized the decision perfectly at the end of the Court’s opinion:
Some members of the public might consider Hillary to be insightful and instructive; some might find it to be neither high art nor a fair discussion on how to set the Nation’s course; still others simply might suspend judgment on these points but decide to think more about issues and candidates. Those choices and assessments, however, are not for the Government to make. “The First Amendment underwrites the freedom to experiment and to create in the realm of thought and speech. Citizens must be free to use new forms, and new forums, for the expression of ideas. The civic discourse belongs to the people, and the Government may not prescribe the means used to conduct it.”15
Well put.
End Notes
- Citizens United v. Federal Election Commission, 558 U.S. ___ (2010).
- Barack Obama, President of the United States, State of the Union Address (January 27, 2010).
- Citizens, 558 U.S. at 47.
- Contributions and donations by foreign nationals, 2 U.S.C. 441e.
- Citizens, 558 U.S. at 38.
- Id.
- Id. at 40.
- Bipartisan Campaign Reform Act of 2002 (BCRA, McCain-Feingold), Pub.L. 107-155, 116 Stat. 81, enacted March 27, 2002, H.R. 2356.
- Id. at 434(f)(3)(A).
- Id. at 437g.
- Id. at 201 and 301.
- Citizens, 558 U.S. at 20.
- Citizens, 558 U.S. at 34 (citing Buckley v. Valeo, 424 U.S. 1, 48 (1976)).
- Id. at 46.
- Id. at 57.