In Citizens United vs. Federal Election Commission (FEC), the U.S. Supreme Court ruled in 2010 that political spending is a form of free speech that’s protected under the First Amendment. The controversial 5-4 decision effectively opened the door for corporations and unions to spend unlimited amounts of money to support their chosen political candidates, provided they were technically independent of the campaigns themselves.
In 2002, Congress passed the Bipartisan Campaign Reform Act (BCRA), widely known as the McCain-Feingold Act, after its original sponsors, Senators John McCain of Arizona and Russ Feingold of Wisconsin.
In one of its key provisions, Section 203, the BCRA prevented corporations or labor unions from using their general treasuries to fund “electioneering communications,” or radio, TV or satellite broadcasts that refer to a candidate for federal office within 60 days before a general election and within 30 days of a primary election.
HILLARY: THE MOVIE
In 2008, the conservative nonprofit organization Citizens United sought an injunction against the Federal Election Commission (FEC) in U.S. District Court in Washington, D.C., in order to prevent the application of the BCRA to its documentary Hillary: The Movie.
The film, which the group wanted to broadcast and advertise before that year’s primary elections, strongly criticized Senator Hillary Clinton of New York, then a candidate for the Democratic nomination for president.
According to Citizens United, Section 203 of the BCRA violated the First Amendment right to free speech both on its face and as it applied to Hillary: The Movie, and other BCRA provisions regarding disclosures of funding and clear identification of sponsors were also unconstitutional.
MCCONNELL VS. FEC
The U.S. District Court ruled against Citizens United on all counts, citing the decision by the U.S. Supreme Court in McConnell vs. FEC (2003), an earlier challenge to campaign finance regulation brought by Republican Senator Mitch McConnell. That ruling upheld the constitutionality of the BCRA’s Section 203 on its face.
The U.S. District Court also held that Hillary: The Movie amounted to “express advocacy or its functional equivalent,” as required by another Supreme Court decision, in Federal Election Commission vs. Wisconsin Right to Life, Inc. (2003), because it attempted to inform voters that Clinton was unfit for office. Because of this, the court ruled, Section 203 was not unconstitutionally applied.
The U.S. Supreme Court agreed to review the lower court’s decision, and heard the first oral arguments in Citizens United vs. FEC in March 2009. While initially the Court expected to rule on narrower grounds related to the film itself, it soon asked the parties to file additional briefs addressing whether it should reconsider all or part of two previous verdicts, McConnell vs. FEC and Austin vs. Michigan Chamber of Commerce (1990).
CITIZENS UNITED DECISION
After the case was reargued in a special session, the Supreme Court handed down a 5-4 verdict on January 21, 2010, that overruled its earlier verdict in Austin and part of its verdict in McConnell regarding the constitutionality of the BCRA’s Section 203.
The majority opinion, written by Justice Anthony M. Kennedy, held that the First Amendment protects the right to free speech, even if the speaker is a corporation, and effectively removed limitations on corporate funding of independent political broadcasts.
Chief Justice John Roberts and Justices Antonin Scalia, Samuel Alito and Clarence Thomas joined Kennedy in the majority, while Justices John Paul Stevens, Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor dissented.
ARE CORPORATIONS PEOPLE?
In his dissenting opinion, Stevens argued that the framers of the Constitution had sought to guarantee the right of free speech to “individual Americans, not corporations,” and expressed the fear that the ruling would “undermine the integrity of elected institutions across the Nation.”
A Washington Post-ABC News poll taken at the time showed that a majority of Americans, both Republicans and Democrats, opposed the Supreme Court’s decision in the Citizens United case, and some 72 percent polled thought Congress should take action to restore some limits to political spending.
In his State of the Union, delivered just a week after the ruling, President Barack Obama said he believed it would “open the floodgates for special interests—including foreign corporations—to spend without limit in our elections.”
Justice Alito, who attended the address, could be seen shaking his head and mouthing the words “Not true.”
CITIZENS UNITED IMPACT
In its decision in Citizens United vs. FEC, the Supreme Court did endorse the longstanding idea that spending in a political campaign should be disclosed to the public in order to prevent corruption.
In the Internet age, the Court reasoned, the public should easily be able to inform itself about corporate-funded political advertising, and identify “whether elected officials are ‘in the pocket’ of so-called moneyed interests.”
In practice, however, it didn’t work that way, as some of the nonprofit organizations now able to spend unlimited amounts on political campaigns claimed tax-exempt status as “social welfare” organizations, which did not have to disclose their donors’ identities.
RISE OF THE SUPER PACS
In a related 2010 case, SpeechNow.org vs. FEC, the U.S. Court of Appeals for the D.C. Circuit cited the Citizens United decision when it struck down limits on the amount of money that individuals could give to organizations that expressly supported political candidates.
Contributions to political action committees (PACs) had previously been limited to $5,000 per person per year, but now that spending was essentially unlimited, so-called “super PACs” emerged that would exert a growing influence on local, state and federal political elections.
In the years since the Supreme Court handed down its decision in Citizens United vs. FEC, hundreds of millions of dollars have been poured into these super PACs, allowing a relatively small group of wealthy individuals and corporations to exert an outsize influence on local, state and federal elections.
According to a report in 2014 by the Brennan Center for Justice, of the $1 billion spent in federal elections by super PACs since 2010, nearly 60 percent came from just 195 individuals and their spouses.
Citizens United v. Federal Election Commission, Oyez (Retrieved March 20, 2018).
Dan Eggen, “Poll: Large majority opposes Supreme Court’s decision on campaign financing,” Washington Post (February 17, 2010).
Gabrielle Levy, “How Citizens United Has Changed Politics in 5 Years,” U.S. News & World Report (January 21, 2015).
Jane Mayer, Dark Money: The Hidden History of the Billionaires Behind the Rise of the Radical Right (New York: Doubleday, 2016).