Citizens United v. Federal Election Commission Essay

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Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), is a U.S. Supreme Court case in which federal restrictions on political expenditures by corporations (including unions and nonprofit organizations) were held to be an impermissible suppression of political speech protected by the First Amendment of the U.S. Constitution. In a 5–4 decision, the Supreme Court struck down portions of the Bipartisan Campaign Reform Act of 2002 (BCRA, commonly referenced as the McCain-Feingold Act) prohibiting corporate “electioneering communication” prior to election. The case addressed the ethical dimensions associated with corporate expenditures and influence in political elections.

McCain-Feingold amended the Federal Election Campaign Act of 1971 by introducing new regulations on the financing of political campaigns. Title I limited the use of “soft money” (unregulated, nonfederal funds) by political parties, whereas Title II banned corporations from broadcasting advertisements that specifically identified candidates within 30 days of a primary or 60 days of a general election.

The law was immediately challenged in McConnell v. Federal Election Commission (2003). The so-called liberal wing of the Supreme Court substantially upheld McCain-Feingold, affording deference to the legislature’s power to regulate elections and its concerns regarding the corrupting influence of corporate money in political elections. However, in Federal Election Commission v. Wisconsin Right to Life, Inc. (2007), the so-called conservative wing of the court ruled in a 5–4 decision that McCain-Feingold’s ban on corporation-funded “issue advertisements” was unconstitutional, so long as the advertisement could reasonably be interpreted as having a purpose other than expressly advocating the election or defeat of a particular candidate. This holding would be expanded in Citizens United.

Citizens United, a conservative nonprofit organization, initially contacted the Federal Election Commission (FEC) in 2004 with a complaint that liberal film director Michael Moore’s Fahrenheit 9/11 constituted illegal political advertising under McCain-Feingold. The FEC dismissed the complaint, finding that the documentary amounted to commercial activity rather than a political expenditure. In response, Citizens United began producing documentaries and, in 2008, promoted a documentary titled Hillary: The Movie. The U.S. District Court for the District of Columbia concluded that advertisements for the movie violated McCain-Feingold’s ban on electioneering communications within 30 days of the Democratic Party primary. Citizens United appealed and the Supreme Court granted certiorari.

Justice Anthony Kennedy’s majority opinion held that McCain-Feingold’s restrictions on independent communications by corporations violated the First Amendment of the Constitution. Overruling Austin v. Michigan Chamber of Commerce, Kennedy opined that the government may not suppress political speech on the basis of the speaker’s corporate identity. Corporations, as associations of individuals, historically enjoyed First Amendment protections, including the freedom of political speech. Partially overruling McConnell v. FEC, the court struck down prohibitions on corporate expenditures for electioneering communications. Hence, corporations and unions were again permitted to advocate directly for or against particular candidates. “When Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear,” Kennedy concluded, “it uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves.”

Concurrences by Chief Justice John Roberts and Justice Antonin Scalia respond to the dissent’s concerns regarding stare decisis and the original understanding of the First Amendment, respectively. Justice Clarence Thomas concurred with the opinion except that he would have nullified the mandatory disclosure requirements, which the court and dissent upheld.

Justice John Paul Stevens strenuously dissented from the court’s decision to strike down the provisions curtailing corporate expenditures. Stevens began by arguing that the majority overreached and ignored stare decisis in order to decide constitutional issues not properly before the court. Stevens categorically denied that McCain-Feingold constituted a wholesale ban on corporate speech, that limitations on corporate speech represented impermissible restrictions based upon identity, and that First Amendment history supported the court’s conclusions. In support of McCain-Feingold, Stevens principally relied upon the government’s interest in discouraging corruption, or the perception of corruption, which could accompany massive corporate expenditures in political elections. Further, Stevens assailed the majority’s unwillingness to distinguish corporations from individuals in the context of free speech and the inherent dangers posed by corporate entities to democratic elections. Stevens argued that the “unfair corporate influence” enjoyed by corporations as a result of their monetary resources actually saturates the marketplace of ideas and drowns out opposing viewpoints. “At bottom,” Stevens concluded, “the court’s opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self-government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering.”

The ruling sparked contentious public debate. Several aspects of the case were widely mischaracterized. Most notably, President Barack Obama criticized the decision during his 2010 State of the Union address, lamenting that foreign corporations could now spend unlimited amounts of money in U.S. elections. However, Kennedy explicitly stated that the ruling had no effect on existing federal laws that banned “foreign individuals or associations from influencing our Nation’s political process.” Further, the ruling did not disturb the legal ban on corporate donations to political campaigns or laws establishing general campaign contribution limits.

Some liberal commentators feared the ruling marked an ethical shift in the court. Whereas the court’s previous decisions tended to advance a liberal social agenda (most notably in “right to privacy” cases), Citizens United represented a defeat for the political Left. For the first time in decades, liberal social activists, rather than conservatives, found themselves denouncing the ethical jurisprudence of the Supreme Court.


  1. Cline, Seth. “Supreme Court Re-Affirms Citizens United.” USNews & World Report (June 25, 2012). (Accessed August 2013).

  1. Liptak, Adam. “Justices, 5-4, Reject Corporate Spending Limit.” New York Times (January 21 2010). (Accessed August 2013).

  1. Toobin, Jeffrey. “Money Unlimited: How Chief Justice John Roberts Orchestrated the Citizens United Decision.” The New Yorker (May 21 2012). (Accessed August 2013).

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