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4 CITIZENS UNITED v. FEDERAL ELECTION COMM’N SCALIA, J., concurring porations? At the time of the founding, religious, educa tional, and literary corporations were incorporated under general incorporation statutes, much as business corpora tions are today.4 See Davis 16–17; R. Seavoy, Origins of the American Business Corporation, 1784–1855, p. 5 (1982); Cooke 94. There were also small unincorporated business associations, which some have argued were the “ ‘true progenitors’ ” of today’s business corporations. Friedman 200 (quoting S. Livermore, Early American Land Companies: Their Influence on Corporate Develop ment 216 (1939)); see also Davis 33. Were all of these silently excluded from the protections of the First Amendment? The lack of a textual exception for speech by corpora tions cannot be explained on the ground that such organi zations did not exist or did not speak. To the contrary, colleges, towns and cities, religious institutions, and guilds had long been organized as corporations at common law and under the King’s charter, see 1 W. Blackstone, Com mentaries on the Laws of England 455–473 (1765); 1 S. Kyd, A Treatise on the Law of Corporations 1–32, 63 (1793) (reprinted 2006), and as I have discussed, the prac tice of incorporation only expanded in the United States. Both corporations and voluntary associations actively petitioned the Government and expressed their views in newspapers and pamphlets. For example: An antislavery Quaker corporation petitioned the First Congress, distrib uted pamphlets, and communicated through the press in 1790. W. diGiacomantonio, “For the Gratification of a Volunteering Society”: Antislavery and Pressure Group —————— 4 At times (though not always) the dissent seems to exclude such non “business corporations” from its denial of free speech rights. See post, at 37. Finding in a seemingly categorical text a distinction between the rights of business corporations and the rights of non-business corpora tions is even more imaginative than finding a distinction between the rights of all corporations and the rights of other associations.

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Citizens United v. Federal Election Commission

Judgment

Question Presented: 1) Did the Supreme Court's decision in McConnell resolve all constitutional as-applied challenges to the BCRA when it upheld the disclosure requirements of the statute as constitutional? 2) Do the BCRA's disclosure requirements impose an unconstitutional burden when applied to electioneering requirements because they are protected "political speech" and not subject to regulation as "campaign speech"? 3) If a communication lacks a clear plea to vote for or against a particular candidate, is it subject to regulation under the BCRA? 4) Should a feature length documentary about a candidate for political office be treated like the advertisements at issue in McConnell and therefore be subject to regulation under the BCRA?

Procedural history: Citizens United sought an injunction against the Federal Election Commission in the United States District Court for the District of Columbia to prevent the application of the Bipartisan Campaign Reform Act (BCRA) to its film Hillary: The Movie. The Movie expressed opinions about whether Senator Hillary Rodham Clinton would make a good president. In an attempt to regulate "big money" campaign contributions, the BCRA applies a variety of restrictions to "electioneering communications." Section 203 of the BCRA prevents corporations or labor unions from funding such communication from their general treasuries. Sections 201 and 311 require the disclosure of donors to such communication and a disclaimer when the communication is not authorized by the candidate it intends to support. Citizens United argued that: 1) Section 203 violates the First Amendment on its face and when applied to The Movie and its related advertisements, and that 2) Sections 201 and 203 are also unconstitutional as applied to the circumstances. The United States District Court denied the injunction. Section 203 on its face was not unconstitutional because the Supreme Court in McConnell v. FEC had already reached that determination. The District Court also held that The Movie was the functional equivalent of express advocacy, as it attempted to inform voters that Senator Clinton was unfit for office, and thus Section 203 was not unconstitutionally applied. Lastly, it held that Sections 201 and 203 were not unconstitutional as applied to the The Movie or its advertisements. The court reasoned that the McConnell decision recognized that disclosure of donors "might be unconstitutional if it imposed an unconstitutional burden on the freedom to associate in support of a particular cause," but those circumstances did not exist in Citizen United's claim.

Summary: No. No. Yes. Yes. The Supreme Court overruled Austin v. Michigan Chamber of Commerce and portions of McConnell v. FEC. (In the prior cases, the Court had held that political speech may be banned based on the speaker's corporate identity.) By a 5-to-4 vote along ideological lines, the majority held that under the First Amendment corporate funding of independent political broadcasts in candidate elections cannot be limited. The majority maintained that political speech is indispensable to a democracy, which is no less true because the speech comes from a corporation. The majority also held that the BCRA's disclosure requirements as applied to The Movie were constitutional, reasoning that disclosure is justified by a "governmental interest" in providing the "electorate with information" about election-related spending resources. The Court also upheld the disclosure requirements for political advertising sponsors and it upheld the ban on direct contributions to candidates from corporations and unions.

Conclusion: The Court invalidated section 441(b) and the Bipartisan Campaign Reform Act. The majority held that political spending is a form of protected speech under the First Amendment, and the government may not keep corporations or unions from spending money to support or denounce individual candidates in elections. While corporations or unions may not give money directly to campaigns, they may seek to persuade the voting public through other means, including ads, especially where these ads were not broadcast.

Legal Issue(s)

Campaign Finance
Electoral Integrity

Applicable Law(s): Bipartisan Campaign Reform Act- section 203. 2 U.S.C. section 441(b).

Region: Americas

Country: United States of America

Language of Decision

English

Court: Supreme Court

Election Type: General

Date of decision: Jan 21, 2010

Geolocation

Latitude: 38.90371529

Longitude: -77.06409858

: Geolocation

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Citizens United v. FEC.pdf
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Citizens United v. Federal Election Commission

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