Citizens United v. Federal Elections Commission
Distortion refers to powerful voices having more sway in public discourse than average citizens. However, one man’s “distortion” is another man's reality.
The Case in Brief
History. In 2002, Congress passed the McCain-Feingold Act or Bipartisan Campaign Reform Act (BCRA), barring corporations and unions from using their general treasuries to advocate for the election or defeat of a federal candidate.
Case Facts. Citizens United, a conservative nonprofit, made “Hillary: The Movie” to dissuade voters from choosing Hillary Clinton in the Democratic primary election. The FEC said this film was an ad that violated the BCRA because the group used some corporate donations to make the movie and planned to air it through the month before the primary.
Majority Opinion. The majority overturned the “anti-distortion doctrine” of Austin and McConnell. This allowed the Court to find corporate donations qualify as free speech.
Results. The Supreme Court ruled that the BCRA applied to the movie and was constitutional. However, they said that the First Amendment views corporate funding for political candidates as protected speech.
In 2008, then-Senators Hillary Clinton and Barack Obama faced each other in a tense Democratic primary to become their party’s nominee for president. At the time, election laws prevented “corporations and unions from using general treasury funds for express advocacy or electioneering communications within an established period before an election.” Two influential Supreme Court cases — McConnell v. FEC and Austin v. Michigan Chamber of Commerce — reaffirmed Congress’ constitutional authority to limit such activities.
These cases outlined the theory of anti-distortion, whereby a corporation would have far more money than a regular citizen and would distort the influence of that citizen in an election. Essentially, since corporations had far more money than the average person, a regular donation by a person would be ineffective compared to corporate donations. Following this principal, election laws like the Bipartisan Campaign Reform Act (BCRA) were held as constitutional on the merits of McConnell and Austin.
Those cases must be overturned if the film at the heart of this case were to be constitutionally protected.
In 2002, Congress passed the McCain-Feingold Act or Bipartisan Campaign Reform Act (BCRA), barring corporations and unions from using their general treasuries to advocate for the election or defeat of a federal candidate within an established period before an election. The BCRA prohibited these groups from paying directly for advertising that backed or condemned a candidate within thirty days of a primary or sixty days of a general election.
In January 2008, the nonprofit organization Citizens United produced the film “Hillary: The Movie” (Hillary). The group created the movie to dissuade voters from voting for Hillary Clinton in the upcoming Democratic primary election. The organization received part of its funding from corporate donations, thus bringing the BCRA into play. After reviewing the film, the FEC declared that the entire film was an illegal advertisement since it aired 30 during the prohibited period before an election.
Citizens United sued the FEC on the pretense that it was unconstitutional for their film to be viewed as a BCRA advertisement and filed a preliminary injunction allowing their film to be seen until the Court made a decision. Due to a provision in the BCRA, Citizens United took this case directly to the Supreme Court in hopes that they would decide if full-length films fall under the rules of the BCRA and whether or not the law subsequently violated the organization’s First Amendment right to free speech.
The First Amendment protects free speech — and by extension political spending — equally regardless of the speaker’s wealth, race, or identity, including if they are a corporation.
It is wrong that movies, television comedies, or YouTube videos can criticize political candidates, yet a BCRA ad is a felony solely because a corporation helped pay for it.
People can agree or disagree with Hillary: the Movie, but the government should not censor those choices for Americans.
The Austin and McConnell cases needed to be overturned because they deviated from previous decisions shown by 21 other cases, stare decisis.
Corporate films are not free speech because they distort the power of individuals to speak freely. The anti-distortion rationale compels a government interest by restricting electioneering during the prohibited time-frame of the BCRA.
The people who own shares in a corporation may not share the views of the film. Therefore, a corporation engaging in political advocacy conflicts with shareholders.
The BCRA must be followed, and this film is a clear violation.
Social Media Anti-Distortion?
When social media sites began, they initially showed content in the order it was posted and by keyword searches. For instance, Facebook showed posts based on when they were published, and YouTube showed search results based on words in the title and the number of views a video had. In a modern setting, social media organizations use algorithms to show users more of what they like, less of what they don't like.
With the rise of Covid-19, algorithms came into play to “combat the spread of misinformation.” Facebook, YouTube, Instagram, and Twitter began to keyword preference posts about Covid to link information from the CDC. Social media sites also utilize this function for posts about election fraud, vaccinations, and other science misinformation. These algorithmic actions can be linked to the doctrine of anti-distortion’s intent to equalize the ability of individuals to influence elections. The majority opinion referred to the possibility of the government forcing social media organizations to ban certain speech, which is now prevented by law. The Court decided that the government had no place to restrict this speech; social media platforms can still determine whether they wish to display that information.
- Does removing certain content from social media act as speech?
- Are misinformation disclaimers a form of corporate speech by social media organizations?
- Is the removal of content the same as a public distortion by social media companies?
Rise of Super PACs
In the 1990 case Austin v. Michigan Chamber of Commerce, the Supreme Court considered a challenge to the Michigan Campaign Finance Act. Under this state law, corporations could not support or oppose candidates for state offices with general treasury funds. It did allow corporations to establish an independent fund for political advocacy. The Michigan Chamber of Commerce wanted to use general funds to sponsor an advertisement in a newspaper that would back a candidate for Michigan’s House of Representatives. It sued in federal court, arguing the law violated its First and Fourteenth Amendments. In a 6-3 decision, the Supreme Court rejected this argument and upheld the Michigan Campaign Finance Act.
One of the immediate impacts of Citizens United — and the overturning of Austin — was a substantial uptick in spending from outside groups and the creation of super PACs. Unburdened by contribution limits, super PACs surpassed national party committees to become the top outside spending group during elections. During the 2018 elections, the top three outside spending groups were prominent super PACS: the Congressional Leadership Fund ($136 million), Senate Majority PAC ($112 million), and the Senate Leadership Fund ($94 million).
Due to their prominence in campaign finance spending, super PACs have become the face of Citizens United. Today, a growing number of Democrats oppose corporate PAC money, blaming such corporations for heightening the influence of money in politics. During the 2020 elections, six of the declared Democratic presidential candidates openly opposed accepting corporate PAC money. Republicans have pointed out that although Democrats tend to take less from corporate PACs, labor unions overwhelmingly donate member dues to campaign against Republicans. From 2010 to 2016, labor unions sent more than $1.1 billion in member dues to anti-Republican advocacy groups.
While Citizens United permits unlimited spending growth for super PACs and related outside spending groups, regular PAC groups are still capped with regulated contribution limits. As a result, corporate PAC contributions remain unchanged by Citizens United. While dark money was already involved in campaign finance before the ruling, it has now become prominent in campaign spending. Citizens United effectively allowed dark money groups to funnel their money into the campaign system through super PACs. In 2018, super PACs accepted an estimated $176 million from dark money groups.
- Why do you think there was such a significant rise in super PACS? What were some main contributing factors to that growth?
- What type of impacts on current elections does the ruling in Citizens United have that are worth noting?
- What is your opinion on super PACS as a whole?
- What do you think the impacts would be if super PACS were outlawed completely?
McConnell v. FEC (2003)
Among its many provisions reforming existing campaign finance law, the Bipartisan Campaign Reform Act (BCRA) imposed a ban on “soft money” and certain restrictions on political advertising. Senator Mitch McConnell challenged both of these aspects of the law as unconstitutional. First, he argued the “soft money” ban exceeded Congress’ Article 1, Section 4 authority to regulate elections and that it violated the free speech protections of the First Amendment. Second, he argued the regulations on political advertisements also violated the free speech protections of the First Amendment. The Supreme Court upheld these provisions of the BCRA in a 5-4 decision.
- Should there be limitations on political donations?
- Are donations speech?
Buckley v. Valeo (1976)
Following the Watergate scandal, Congress passed the Federal Election Campaign Act (FECA). The FECA intended to curb corruption in the electoral process by limiting financial contributions to candidates and creating the Federal Election Commission to enforce the law. The petitioners sued, arguing the law violated the First Amendment’s free speech protections.
In this complicated decision, the Supreme Court upheld the FECA provisions limiting individual contributions to political campaigns. However, it struck down restrictions on independent expenditures, candidates’ use of personal finances, and the limitation on total campaign expenditures. It argued that these practices do not allow for the same kind of corruption as individual contributions, so the government’s anti-corruption rationale was insufficient for passing these provisions. Similar to Citzens United v. FEC, this case used the anti-distortion rationale to limit campaign donations fearing richer individuals could more effectively influence elections.
- Is the FECA necessary? Should campaign donations be monitored or anonymous?
- Should people be allowed to donate as much money as they like?
First National Bank of Boston v. Bellotti (1978)
The National Bank of Boston, joined by several other organizations, wanted to spend money opposing a Massachusetts ballot initiative that would implement a graduated income tax. Massachusetts’ Attorney General informed the groups that they were doing so in violation of state law. The law prohibited organizations from making contributions to influence the outcome of an election where their material assets were not directly affected. The organizations challenged the law’s constitutionality, arguing it violated their First Amendment rights. In its 5-4 ruling, the Supreme Court overruled the statute, saying it violated the constitutionally protected speech of these organizations.
- Should the owner of a company be able to use company money to influence a vote?
- Should they be able to if the vote negatively impacts their business?
- Should businesses be involved in political decisions?
Alabama businessman Shaun McCutcheon contributed $33,088 to sixteen different candidates running for federal office in 2012. His donations exceeded the aggregate (total) campaign finance limit established by the Bipartisan Campaign Reform Act (BCRA) of 2002. This law limited the total amount of political contributions an individual could make in a given two-year election period to federal candidates, federal political action committees, and political parties.
In the subsequent case, McCutcheon v. Federal Elections Commission (2013), the Court ruled in a 5–4 decision that limits on the number of political contributions established by the BCRA are unconstitutional. The Court held that “contributing money to a candidate is an individual’s right to participate in the electoral process… A restriction on how many candidates and committees an individual may support is hardly a ‘modest restraint’ on those rights. The government may no more restrict how many candidates or causes a donor may support than it may tell a newspaper how many candidates it may endorse.”
- Identify the civil liberty that is common in both Citizens United v. Federal Election Commission (2010) and McCutcheon v. Federal Election Commission (2013).
- Explain how the decision in Citizens United v. Federal Election Commission relates to the reasoning in McCutcheon v. Federal Election Commission.
- Explain how the decision in McCutcheon v. Federal Election Commission can be used to support the participatory, pluralist, or elite model of democracy.
Political Action Committee (PAC): A committee formed by business, labor, or other special-interest groups to raise money for political election campaigns.
Anti-Distortion: A distortion refers to the government’s view of a departure from facts or a distortion of the truth. However, that is only from the standpoint of the government. One man’s “distortion” is another man’s reality. The Majority Opinion rejected the premise that the Government has an interest in equalizing the relative ability of individuals and groups to influence the outcome of elections.
Soft Money: Money donated to political parties to support general political activities rather than a particular candidate, and thus not subject to regulations or limits that govern campaign contributions.
As-Applied Challenge: A Court challenge particular to the case at hand as opposed to an imaginary future case.
Facial Challenge: A Court challenge arguing that a government law, rule, regulation, or policy is unconstitutional as written. Different from an as-applied challenge in that the result applies to everyone, not just those involved in the case.
Judicial Restraint: The Court follows precedent from previous cases rather than formulating a new broad judicial doctrine.
Electioneering Communications: Any broadcast, cable, or satellite communication that refers to an identified candidate for Federal office.
Stare Decisis. Latin for “Let the Decision Stand.” Stare decisis is a legal doctrine that believes the courts should let decisions from a culmination of previous cases stand for the case in front of them.