The conservative nonprofit organization Citizens United wanted to run TV commercials to promote its film Hillary: The Movie in the run-up to the 2008 Democratic presidential primary elections. This would have been illegal under the Bipartisan Campaign Reform Act, generally known as the McCain–Feingold Act, of 2002, which prohibited the broadcast of “electioneering communications” paid for by corporations in the 30 days before a presidential primary and in the 60 days before a general election.
In the Supreme Court, Justice Kennedy wrote the majority opinion in favor of Citizens United, striking down the prohibition in McCain–Feingold of independent expenditure by corporations and labor unions as a violation of the First Amendment’s protection of free speech. Kennedy wrote: “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.” The majority ruling also overruled provisions in earlier Supreme Court decisions which allowed restrictions on corporate spending on election campaigns, including Austin v. Michigan Chamber of Commerce (1990) and McConnell v. FEC (2003).
In a strong dissenting opinion, Justice John Paul Stevens, joined by liberal Justices Ginsburg, Breyer, and Sotomayor, argued that the majority ruling “threatens to undermine the integrity of elected institutions across the Nation … A democracy cannot function effectively when its constituent members believe laws are being bought and sold.” This ties in with Senator McCain’s remark in his 2002 book with the curious title Worth the Fighting For: “Money does buy access in Washington, and access increases influence that often results in benefiting the few at the expense of the many.”
The most worrying perceived result of the Citizens United decision was the rise of “super PACs,” or “political action committees,” which do not themselves contribute to political candidates or parties but can accept unlimited contributions from individuals, corporations, and labor unions. In fact, it was the decision by the U.S. Court of Appeals for the District of Columbia in SpeechNOW.org v. FEC (2010) that allowed the creation of super PACs. In a 9–0 decision, the D.C. Circuit Court held that on the basis of Citizens United, a nonprofit organization like SpeechNOW, which itself made only “independent expenditures,” could not be subject to any contribution limits. “Independent expenditure” means money spent advocating for the election of a particular candidate but without consultation, cooperation, or any “material” involvement with that candidate.
Citizens United also means that the laws of 24 states prohibiting or limiting “independent expenditures” by corporations and labor unions are under threat. And in McCutcheon v. FEC (2014), the U.S. Supreme Court swept away the previous prohibition on individuals contributing more than $48,600 combined to all federal candidates and more than $74,600 combined to all parties and super PACs. But an individual’s contributions to an individual politician’s campaign are still capped at $2,700 per election. In the words of Chief Justice Roberts, writing for the majority: “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.” Justice Breyer, writing for the dissenting minority, argued that the decision “creates a loophole that will allow a single individual to contribute millions of dollars to a political party or to a candidate’s campaign.” Whoever is right, election campaigns are now more awash with money than ever before.
The whole new approach to campaign finance rests on the definition of contributions to political campaigns as protected speech under the First Amendment. Though Chief Justice Roberts was one of the chief protagonists of this approach, he was also concerned about the way Citizens United struck down much of the McCain–Feingold Act and overruled some recent Supreme Court decisions to boot — in contradiction to Roberts’s stated commitment to judicial restraint and stare decisis, or fidelity to precedent. So the Chief Justice, joined by Justice Alito, wrote a separate concurrence to address this important problem. “There is a difference between judicial restraint and judicial abdication,” wrote Roberts. He quoted Justice Oliver Wendell Holmes in remarking that “Judging the constitutionality of an Act of Congress is ‘the gravest and most delicate duty that this Court is called upon to perform.’” But he did not really justify the complete redefinition of “political speech” in Citizens United. His justification of the majority’s departure from precedent was more persuasive. If stare decisis were an “inexorable command,” he explained, “segregation would be legal, minimum wage laws would be unconstitutional, and the Government could wiretap ordinary criminal suspects without first obtaining warrants.”
Citizens United remains a radical and highly controversial reinterpretation of the free speech clause of the First Amendment, with a major effect on elections.
