Citizens United v. Federal Election Commission

At the dawn of 2010, concerns over the influence of big money on politics were reaching a fever pitch. Into this climate stepped the Supreme Court with its Citizens United decision, which opened the door for yet more money to flood into political coffers. The Court ruled that limits on political and campaign spending by corporations and labor unions infringe on the First Amendment rights of those organizations.

The ruling overturned prior Supreme Court case law, and it invalidated portions of the McCain-Feingold law, which banned unions and corporations from paying for political ads in the waning days of campaigns. Criticism of the decision was swift, and President Barack Obama took the unusual step of lambasting the ruling in his State of the Union address while the justices looked on.


 Citizens United v. Federal Election Commission


558 U.S. 50 (2010)

Appeal from the United States District Court for the District of Columbia

As amended by §203 of the Bipartisan Campaign Reform Act of 2002 (BCRA), federal law prohibits corporations and unions from using their general treasury funds to make independent expenditures for speech that is an electioneering communication or for speech that expressly advocates the election or defeat of a candidate. 2 U.  S.  C. §441b. An electioneering communication is 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 election, §434(f)(3)(A), and that is publicly distributed, 11 CFR §100.29(a)(2), which in the case of a candidate for nomination for President means that the communication [c]an be received by 50,000 or more persons in a State where a primary election is being held within 30 days, §100.29(b)(3)(ii). Corporations and unions may establish a political action committee (PAC) for express advocacy or electioneering communications purposes. 2 U.  S.  C. §441b(b)(2). In McConnell v. Federal Election Commn , 540 U.  S. 93, this Court upheld limits on electioneering communications in a facial challenge, relying on the holding in Austin v. Michigan Chamber of Commerce , 494 U.  S. 652, that political speech may be banned based on the speakers corporate identity.

In January 2008, appellant Citizens United, a nonprofit corporation, released a documentary (hereinafter Hillary ) critical of then-Senator Hillary Clinton, a candidate for her partys Presidential nomination. Anticipating that it would make Hillary available on cable television through video-on-demand within 30 days of primary elections, Citizens United produced television ads to run on broadcast and cable television. Concerned about possible civil and criminal penalties for violating §441b, it sought declaratory and injunctive relief, arguing that (1) §441b is unconstitutional as applied to Hillary; and (2) BCRAs disclaimer, disclosure, and reporting requirements, BCRA § §201 and 311, were unconstitutional as applied to Hillary and the ads. The District Court denied Citizens United a preliminary injunction and granted appellee Federal Election Commission (FEC) summary judgment.


1.  Because the question whether §441b applies to Hillary cannot be resolved on other, narrower grounds without chilling political speech, this Court must consider the continuing effect of the speech suppression upheld in Austin . Pp.  520.

(a)  Citizen Uniteds narrower argumentsthat Hillary is not an electioneering communication covered by §441b because it is not publicly distributed under 11 CFR §100.29(a)(2); that §441b may not be applied to Hillary under Federal Election Commn v. Wisconsin Right to Life, Inc. , 551 U.  S. 449 (WRTL), which found §441b unconstitutional as applied to speech that was not express advocacy or its functional equivalent, id., at 481 (opinion of R oberts , C.  J.), determining that a communication is the functional equivalent of express advocacy only if [it] is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate, id. , at 469470; that §441b should be invalidated as applied to movies shown through video-on-demand because this delivery system has a lower risk of distorting the political process than do television ads; and that there should be an exception to §441bs ban for nonprofit corporate political speech funded overwhelming by individualsare not sustainable under a fair reading of the statute. Pp.  512.

(b)  Thus, this case cannot be resolved on a narrower ground without chilling political speech, speech that is central to the First Amendments meaning and purpose. Citizens United did not waive this challenge to Austin when it stipulated to dismissing the facial challenge below, since (1) even if such a challenge could be waived, this Court may reconsider Austin and §441bs facial validity here because the District Court passed upon the issue, Lebron v. National Railroad Passenger Corporation, 513 U.  S. 374; (2) throughout the litigation, Citizens United has asserted a claim that the FEC has violated its right to free speech; and (3) the parties cannot enter into a stipulation that prevents the Court from considering remedies necessary to resolve a claim that has been preserved. Because Citizen Uniteds narrower arguments are not sustainable, this Court must, in an exercise of its judicial responsibility, consider §441bs facial validity. Any other course would prolong the substantial, nationwide chilling effect caused by §441bs corporate expenditure ban. This conclusion is further supported by the following: (1) the uncertainty caused by the Governments litigating position; (2) substantial time would be required to clarify §441bs application on the points raised by the Governments position in order to avoid any chilling effect caused by an improper interpretation; and (3) because speech itself is of primary importance to the integrity of the election process, any speech arguably within the reach of rules created for regulating political speech is chilled. The regulatory scheme at issue may not be a prior restraint in the strict sense. However, given its complexity and the deference courts show to administrative determinations, a speaker wishing to avoid criminal liability threats and the heavy costs of defending against FEC enforcement must ask a governmental agency for prior permission to speak. The restrictions thus function as the equivalent of a prior restraint, giving the FEC power analogous to the type of government practices that the First Amendment was drawn to prohibit. The ongoing chill on speech makes it necessary to invoke the earlier precedents that a statute that chills speech can and must be invalidated where its facial invalidity has been demonstrated. Pp.  1220.

2.   Austin is overruled, and thus provides no basis for allowing the Government to limit corporate independent expenditures. Hence, §441bs restrictions on such expenditures are invalid and cannot be applied to Hillary. Given this conclusion, the part of McConnell that upheld BCRA §203s extension of §441bs restrictions on independent corporate expenditures is also overruled. Pp.  2051.

(a)  Although the First Amendment provides that Congress shall make no law abridging the freedom of speech, §441bs prohibition on corporate independent expenditures is an outright ban on speech, backed by criminal sanctions. It is a ban notwithstanding the fact that a PAC created by a corporation can still speak, for a PAC is a separate association from the corporation. Because speech is an essential mechanism of democracyit is the means to hold officials accountable to the peoplepolitical speech must prevail against laws that would suppress it by design or inadvertence. Laws burdening such speech are subject to strict scrutiny, which requires the Government to prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest. WRTL, 551 U.  S., at 464. This language provides a sufficient framework for protecting the interests in this case. Premised on mistrust of governmental power, the First Amendment stands against attempts to disfavor certain subjects or viewpoints or to distinguish among different speakers, which may be a means to control content. The Government may also commit a constitutional wrong when by law it identifies certain preferred speakers. There is no basis for the proposition that, in the political speech context, the Government may impose restrictions on certain disfavored speakers. Both history and logic lead to this conclusion. Pp.  2025.

(b)  The Court has recognized that the First Amendment applies to corporations, e.g., First Nat. Bank of Boston v. Bellotti , 435 U.  S. 765 , and extended this protection to the context of political speech, see, e.g., NAACP v. Button, 371 U.  S. 415 . Addressing challenges to the Federal Election Campaign Act of 1971, the Buckley Court upheld limits on direct contributions to candidates, 18 U.  S.  C. §608(b), recognizing a governmental interest in preventing quid pro quo corruption. 424 U.  S., at 2526. However, the Court invalidated §608(e)s expenditure ban, which applied to individuals, corporations, and unions, because it fail[ed] to serve any substantial governmental interest in stemming the reality or appearance of corruption in the electoral process, id. , at 4748. While Buckley did not consider a separate ban on corporate and union independent expenditures found in §610, had that provision been challenged in Buckley s wake, it could not have been squared with the precedents reasoning and analysis. The Buckley Court did not invoke the overbreadth doctrine to suggest that §608(e)s expenditure ban would have been constitutional had it applied to corporations and unions but not individuals. Notwithstanding this precedent, Congress soon recodified §610s corporate and union expenditure ban at 2 U.  S.  C. §441b, the provision at issue. Less than two years after Buckley, Bellotti reaffirmed the First Amendment principle that the Government lacks the power to restrict political speech based on the speakers corporate identity. 435 U.S., at 784785. Thus the law stood until Austin upheld a corporate independent expenditure restriction, bypassing Buckley and Bellotti by recognizing a new governmental interest in preventing the corrosive and distorting effects of immense aggregations of [corporate] wealth that have little or no correlation to the publics support for the corporations political ideas. 494 U.  S., at 660. Pp.  2532.

(c)  This Court is confronted with conflicting lines of precedent: a pre- Austin line forbidding speech restrictions based on the speakers corporate identity and a post- Austin line permitting them. Neither Austin s antidistortion rationale nor the Governments other justifications support §441bs restrictions. Pp.  3247.

(1)  The First Amendment prohibits Congress from fining or jailing citizens, or associations of citizens, for engaging in political speech, but Austin s antidistortion rationale would permit the Government to ban political speech because the speaker is an association with a corporate form. Political speech is indispensable to decisionmaking in a democracy, and this is no less true because the speech comes from a corporation. Bellotti, supra, at 777 (footnote omitted). This protection is inconsistent with Austin s rationale, which is meant to prevent corporations from obtaining  an unfair advantage in the political marketplace   by using  resources amassed in the economic marketplace.   494 U.  S., at 659. First Amendment protections do not depend on the speakers financial ability to engage in public discussion. Buckley , supra, at 49. These conclusions were reaffirmed when the Court invalidated a BCRA provision that increased the cap on contributions to one candidate if the opponent made certain expenditures from personal funds. Davis v. Federal Election Commn , 554 U.  S. ___, ___. Distinguishing wealthy individuals from corporations based on the latters special advantages of, e.g., limited liability, does not suffice to allow laws prohibiting speech. It is irrelevant for First Amendment purposes that corporate funds may have little or no correlation to the publics support for the corporations political ideas. Austin, supra, at 660. All speakers, including individuals and the media, use money amassed from the economic marketplace to fund their speech, and the First Amendment protects the resulting speech. Under the antidistortion rationale, Congress could also ban political speech of media corporations. Although currently exempt from §441b, they accumulate wealth with the help of their corporate form, may have aggregations of wealth, and may express views hav[ing] little or no correlation to the publics support for those views. Differential treatment of media corporations and other corporations cannot be squared with the First Amendment, and there is no support for the view that the Amendments original meaning would permit suppressing media corporations political speech. Austin interferes with the open marketplace of ideas protected by the First Amendment. New York State Bd. of Elections v. Lopez Torres, 552 U.  S. 196. Its censorship is vast in its reach, suppressing the speech of both for-profit and nonprofit, both small and large, corporations. Pp.  3240.

(2)  This reasoning also shows the invalidity of the Governments other arguments. It reasons that corporate political speech can be banned to prevent corruption or its appearance. The Buckley Court found this rationale sufficiently important to allow contribution limits but refused to extend that reasoning to expenditure limits, 424 U.S., at 25, and the Court does not do so here. While a single Bellotti footnote purported to leave the question open, 435 U.  S., at 788, n. 26, this Court now concludes that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption. That speakers may have influence over or access to elected officials does not mean that those officials are corrupt. And the appearance of influence or access will not cause the electorate to lose faith in this democracy. Caperton v. A. T. Massey Coal Co. , 556 U.  S. ___, distinguished. Pp.  4045.

(3)  The Governments asserted interest in protecting shareholders from being compelled to fund corporate speech, like the antidistortion rationale, would allow the Government to ban political speech even of media corporations. The statute is underinclusive; it only protects a dissenting shareholders interests in certain media for 30 or 60 days before an election when such interests would be implicated in any media at any time. It is also overinclusive because it covers all corporations, including those with one shareholder. P. 46.

(4)  Because §441b is not limited to corporations or associations created in foreign countries or funded predominately by foreign shareholders, it would be overbroad even if the Court were to recognize a compelling governmental interest in limiting foreign influence over the Nations political process. Pp.  4647.

(d)  The relevant factors in deciding whether to adhere to stare decisis, beyond workabilitythe precedents antiquity, the reliance interests at stake, and whether the decision was well reasonedcounsel in favor of abandoning Austin, which itself contravened the precedents of Buckley and Bellotti. As already explained, Austin was not well reasoned. It is also undermined by experience since its announcement. Political speech is so ingrained in this countrys culture that speakers find ways around campaign finance laws. Rapid changes in technologyand the creative dynamic inherent in the concept of free expressioncounsel against upholding a law that restricts political speech in certain media or by certain speakers. In addition, no serious reliance issues are at stake. Thus, due consideration leads to the conclusion that Austin should be overruled. The Court returns to the principle established in Buckley and Bellotti that the Government may not suppress political speech based on the speakers corporate identity. No sufficient governmental interest justifies limits on the political speech of nonprofit or for-profit corporations. Pp.  4750.

3.  BCRA § §201 and 311 are valid as applied to the ads for Hillary and to the movie itself. Pp.  5057.

(a)  Disclaimer and disclosure requirements may burden the ability to speak, but they impose no ceiling on campaign-related activities, Buckley , 424 U.  S., at 64, or    prevent anyone from speaking,     McConnell , supra , at 201. The Buckley Court explained that disclosure can be justified by a governmental interest in providing the electorate with information about election-related spending sources. The McConnell Court applied this interest in rejecting facial challenges to § §201 and 311. 540 U.  S., at 196. However, the Court acknowledged that as-applied challenges would be available if a group could show a  reasonable probability   that disclosing its contributors names would  subject them to threats, harassment, or reprisals from either Government officials or private parties.   Id., at 198. Pp.  5052.

(b)  The disclaimer and disclosure requirements are valid as applied to Citizens Uniteds ads. They fall within BCRAs electioneering communication definition: They referred to then-Senator Clinton by name shortly before a primary and contained pejorative references to her candidacy. Section 311 disclaimers provide information to the electorate, McConnell, supra, at 196, and insure that the voters are fully informed about who is speaking, Buckley , supra , at 76. At the very least, they avoid confusion by making clear that the ads are not funded by a candidate or political party. Citizens Uniteds arguments that §311 is underinclusive because it requires disclaimers for broadcast advertisements but not for print or Internet advertising and that §311 decreases the quantity and effectiveness of the groups speech were rejected in McConnell. This Court also rejects their contention that §201s disclosure requirements must be confined to speech that is the functional equivalent of express advocacy under WRTL s test for restrictions on independent expenditures, 551 U.  S., at 469476 (opinion of R oberts , C.J.). Disclosure is the less-restrictive alternative to more comprehensive speech regulations. Such requirements have been upheld in Buckley and McConnell. Citizens Uniteds argument that no informational interest justifies applying §201 to its ads is similar to the argument this Court rejected with regard to disclaimers. Citizens United finally claims that disclosure requirements can chill donations by exposing donors to retaliation, but offers no evidence that its members face the type of threats, harassment, or reprisals that might make §201 unconstitutional as applied. Pp.  5255.

(c)  For these same reasons, this Court affirms the application of the § §201 and 311 disclaimer and disclosure requirements to Hillary . Pp.  5556.

Reversed in part, affirmed in part, and remanded.

To read the rest of the opinion in Citizens United v. Federal Election Commission, go to Nolos US Supreme Court Center.

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