Citizens United v Federal Election Commission, 558 US ____ (2010).
Justice Kennedy delivered the opinion of the Court, in which Chief Justice Roberts, Justices Scalia and Alito joined, in which Justice Thomas joined as to all but Part IV, and in which Justices Stevens, Ginsburg, Breyer, and Sotomayor joined as to Part IV. Chief Justice Roberts filed a concurring opinion, in which Justice Alito joined. Justice Scalia filed a concurring opinion, in which Justice Alito joined, and in which Justice Thomas joined in part. Justice Stevens filed an opinion concurring in part and dissenting in part, in which Justices Ginsburg, Breyer, and Sotomayor joined. Justice Thomas filed an opinion concurring in part and dissenting in part.
McCain-Feingold, at 2 USC §441b, prohibits corporations and unions from using their general treasury funds to make independent expenditures for speech defined as an “electioneering communication” or for speech expressly advocating the election or defeat of a candidate. Limits on electioneering communications were upheld in McConnell v Federal Election Commission, 540 US 93, 203-209 (2003). The holding of McConnell rested to a large extent on an earlier case, Austin v Michigan Chamber of Commerce, 494 US 652 (1990). Austin had held that political speech may be banned based on the speaker’s corporate identity. Unless, of course, your corporation is a newspaper with an editorial page – and herein lies the crux within the crux.
From a practical standpoint, I don’t think corporations and unions are spending less than they would like to now; they all have their PACs and non-profits that do their bidding for them. Not much will change except the legal fiction that they can’t do what they’re doing. PACs are, after all, a reaction to McCain-Feingold. Any time you outlaw something, you create a black market for that activity, and PACs are that black market.
Citizens United asked the Court to reconsider Austin and, in effect, McConnell. It has been noted that “Austin was a significant departure from ancient First Amendment principles,” Federal Election Commission v Wisconsin Right to Life, 551 US 449, 490 (2007). The Court agrees with that conclusion and holds that stare decisis does not compel the continued acceptance of Austin. The government may regulate corporate political speech through disclaimer and disclosure requirements, but it may not suppress that speech altogether. Stare decisis, as historically viewed by the Court, is the principle that precedence is the default position, and must be overturned by the power of arguments against it. This was such a case.
Part I simply restates the case, summarizes the arguments by Citizens United (a $12 million non-profit) to the FEC requesting a favorable ruling on allowing their movie, Hillary: the Movie, to be available by video-on-demand just before a primary election in which Senator Clinton was participating, and the DC District Court’s rejection of that argument.
Part II narrowly examines whether McCain-Feingold applies to Hillary. Petitioner parses the definition of what constitutes distribution in violation of McCain-Feingold, and the Court disagreed, parsing the definition in a way that Hillary does violate McCain-Feingold. Since neither definition is prima facie superior, petitioner’s argument, which depends on their parsing, is rejected. The Justices then addressed an amici which asked the Court to construe the definition as meaning a likelihood of viewership rather than the possibility of viewership, but the Court reminded petitioner that that’s not how the law reads. Citizens United then argued that Hillary wasn’t an advocacy piece but a documentary, and thus transparent to McCain-Feingold. The Court rejected this argument, saying that the two categories were not mutually exclusive, and that no reasonable person could view Hillary [which the Court, en banc, did] without assessing the message of the film as encouraging one to vote against Senator Clinton. Petitioner then asked the Court to exempt non-profits who are overwhelmingly funded by private, rather than corporate, donations, and respondent [government] agreed in principle to accept this condition. If the Court were to carve out a de minimis exemption, Mr Justice Kennedy writes, the result would to allow for-profit corporations to expend general treasury in support or rejection of a candidate, and in light of McCain-Feingold, there is no principled basis for doing so. There is then a discussion of some arcane issues relating to how various aspects of petitioner’s complaint relate to one another, and whether ruling on some obviate considering others, and so on. Citizens United, on these counts, cannot be decided by narrowly considering only McCain-Feingold.
Part III examines how the First Amendment relates to corporations and unions, and how PACs are different legal persons from the corporations that formed them. Austin created new ground by stating a government interest in preventing distortion and corruption, and in upholding shareholder interests, all of which rest on the principle that a for-profit corporation would have no innate yearning for veracity; that support or resistance could result in political quid pro quo; and that whatever the corporation’s political views, and veracity of those views aside, they would only randomly align with those of shareholders. However, the Court finds little evidence that government has expended much effort in enforcing Austin. For example, the FEC has never applied Austin to a book, and if it tried, there would result a vigorous as-applied challenge. The same applies to newspapers (virtually all of which are incorporated) that have editorial pages proffering support or resistance to a particular candidate. Now the Court is confronted with a movie. The Austin majority undertook to distinguish wealthy individuals from corporations on the ground that “[s]tate law grants corporations special advantages – such as limited liability, perpetual life, and favorable treatment of the accumulation and distribution of assets.” This does not suffice, however, to allow laws prohibiting speech. “It is rudimentary that the State cannot exact as the price of those special advantages the forfeiture of First Amendment rights.”
The Court finds that it is irrelevant for purposes of the First Amendment that corporate funds may have little or no correlation to the public’s support for the corporation’s political ideas. That is, in fact, the intention of First Amendment protections. Austin’s antidistortion rationale, if properly enforced, would inevitably produce the dangerous, and unacceptable, consequence that Congress could ban political speech of media corporations. There is then a discussion of distinguishing between media and non-media corporations for the purposes of exempting media corporations from McCain-Feingold. Without considering the constitutionality of the ban itself, the Court finds this distinction between corporations unconstitutional.
Part IV, the controversial segment of the majority’s ruling, discusses the disclaimer and disclosure portions of the law. Justice Stevens, with whom Justices Ginsburg, Breyer and Sotomayor concur, more generally sees the real issue of Citizens United as being how, not if, petitioner may finance its electioneering. He then focuses on the ability of government to regulate speech on the basis of identity, citing that it routinely restricts the speech of students, prisoners, members of the Armed Forces, and its own employees. Why not non-media corporations? There then begins (at p. 114) a rather lengthy and interesting discussion of the “original understandings” of the Founders regarding the First Amendment. I find this a refreshing approach to constitutional law – actually regarding the rich archives of the Founders’ intent – but, again, a rigorous enforcement of such thinking on the part of the Court would fill its docket for decades to come. While I would welcome it, I find to be highly unlikely that the Court will undertake it.
Justice Thomas writes in concurrence with an exception to Part IV. He holds that the disclaimer, disclosure and reporting requirements of McCain-Feingold are also unconstitutional. Here, I disagree. It is this very “Chinese Wall” of regulation, reporting and disclosure that separates PACs and political 501.3(c)’s from their corporate and union benefactors, and that serves the public good. By striking down Austin, McConnell and §203 of McCain-Feingold, the Court is allowing corporations and unions to forego the burdensome aspects of establishing a PAC or 501.3(c), but it is also allowing corporations and unions to forego the timely and complete foreclosure of political spending. I see no principled basis for limiting public knowledge as to who is presenting what message as they relate to elections.
I apologize for the length, but many legally interesting points were discussed in reaching this ruling, and I’m sure that Citizens United will be revisited, in whole or in part, in future cases. To me, the profundity of Citizens United isn’t in the specific issues raised, but rather the introspection of the Court on just how far it allowed to wander from the Founders’ intent. I personally feel the Constitution to be one of the greatest documents penned by man, and the cavalier abandonment of its embedded message by the courts for political expediency to be distasteful and historically regrettable. Those who know me have heard this before, but I restate it here. The Declaration of Independence, The Articles of Confederation, The Constitution of the United States of America, The Federalist Papers, and The Northwest Ordnance, along with volumes of personal correspondence between the Founders, constitute perhaps history’s most complete explanation of intent behind a body of legal works. That the courts have continually bemoaned having to “intuit” the Founders’ intent behind the language of the Constitution is pathetic, or, more probably, an evasion enabling their [the courts’] abandonment of those very principles.
 558 US ____ (2010), p. vii. Available as pdf-file; G:-Drive/Law/Supreme Court/Cases/Citizens United v Federal Elections Commission.
 See ibid, pp. 1-2.
 See 558 US ____ (2010), pp. 34-35.
 Davis v Federal Election Commission.
 Ibid., at 680.
 See 558 US ____ (2010), beginning at p. 51.
 Ibid, p. 81.
 Ibid, p. 109.
 Ibid, p. 171.