“Citizens United v. Federal Election Commission” or “That Thing About Money in Politics”

On January 21st, 2010, the Supreme Court handed down its opinion in Citizens United v. Federal Election Commission.

The Basics

What is Citizens United?

A “super PAC”, or a non-profit corporation that can solicit and raise unlimited amounts of money, but cannot contribute to or coordinate directly with a candidate or political party. PAC stands for “political action committee”.

Ok, how is a super PAC different from a regular PAC?

Super PACs can raise an unlimited amount of money from a variety of sources, but they cannot directly contribute to a specific candidate. PACs are allowed to work directly with candidates and parties, but have strict limits on the amount of money they can contribute.

What is the the Federal Election Commission (FEC)?

An independent government agency that was created in 1974 in order to enforce campaign finance law.

How did this start?

In 2008, Citizens United produced a movie about Hillary Clinton that painted her in a very bad light.  They wanted to make this video available on-demand within thirty days of the 2008 primary. 

They knew that doing this would violate the Bipartisan Campaign Reform Act (BCRA), so Citizens United filed a complaint asking for a ruling that the BCRA was unconstitutional, preventing FEC from enforcing the law. They were denied in the lower courts, and when they appealed, it made its way to the Supreme Court.

The Law

BCRA

The Bipartisan Campaign Reform Act (also known as McCain-Feingold, after the Senators who worked on the bill) was passed in 2002. After a series of events including the Enron scandal and Senator McCain’s presidential bid, the country was starting to feel icky about all that corporate money in politics. The last time campaign finance reform laws had been successfully passed was 1978, after the nation had licked most of its wounds from Watergate.

BCRA helped to significantly reduce the power of corporations (including non-profits) by eliminating their ability to use their money to distribute electioneering communications, or communications that advocate for or against a certain political candidate, within thirty days of a primary election.

The Decision

In a 5-4 decision (there’s a trend here, isn’t there?) the court struck down the parts of BCRA that limited a corporations ability to distribute electioneering communications.

The Majority Opinion

Justice Kennedy (’88 Reagan), ever the swing vote, wrote the majority opinion. It was written as an analysis of the First Amendment, rather than about BCRA. There are two sentences in particular that have had a huge impact on the future of campaign finance.

“The identity of the speaker is not decisive in determining whether speech is protected. Corporations and other associations, like individuals, contribute to the ‘discussion, debate, and the dissemination of information and ideas’ that the First Amendment seeks to foster.”

Essentially, the majority was saying that corporations are protected by the First Amendment, and therefore their speech cannot be limited. They were also saying that there was no evidence to show that indirect support of a candidate (like making a movie against their opponent) would lead to corruption.

The Dissent

Justice Stevens (’75 Ford), who retired from the Court later in 2010, wrote the dissent. He focused in on the majority’s belief that corporations and people were the same. He argued that although corporations made significant contributions to society, they could not vote or hold public office, therefore, they weren’t the same as people.

He also raised concerns about corruption. He argued against the majority’s assertion that these types of corporate expenditures wouldn’t lead to corruption.

“In an age in which money and television ads are the coin of the campaign realm, it is hardly surprising that corporations deployed these ads to curry favor with, and to gain influence over, public officials.”

Which side are you on?

This case comes down to one question:

• Does the First Amendment also protect corporations?

If you answered ‘yes’, you most likely don’t believe the government should be able to restrict a corporations speech, or how much money they spend to distribute that speech. In this case, you probably side with the majority.

If you answered ‘no’, you’re probably uncomfortable with corporations having the same First Amendment rights as you, and want the government to able to limit the amount of money that can be used to distribute electioneering communications. You’re probably on the side of the dissent.

How does it affect your life?

This decision affects every election at every level. Through super PACs, corporations can now allocate unlimited amounts of money toward electioneering communications, which don’t technically support a specific candidate, but are meant to influence voters. This means that a lot of the information you receive about candidates is filtered through the lens of that corporation’s interests. In total, super PACs spent $1,060,490,102 on the 2016 election. Yes, there are three commas in that number.

So, you should stay informed outside of television, youtube, and social media ads. Each candidate has a website and contact information, so you can learn about their policies and stances directly from them. Go to a town hall, call their office, attend an event that they’re having

It’s also your responsibility, as a US citizen, to be telling your representatives what you care about. Since most citizens don’t have the kind of money that corporations do, it’s on them to use traditional means to influence their elected officials, like calling their reps, visiting their website, or joining or starting an advocacy group. Does that sound like a lot? Teddy Roosevelt has some words for you.

And as with everything, you need to be using your vote. Corporations may have more money than people, but, unlike corporations, people have the vote, and, unlike money, everybody only gets one.

Are you a lawyer or a law student? Did I screw up or misrepresent something in this post? Let me know! You can comment on this post or email me here. I’m learning, and your insight would really help.