"And it is no less true, that personal security and private property rest entirely upon the wisdom, the stability, and the integrity of the courts of justice."
- Joseph Story, Commentaries on the Constitution, 1833
The case challenged an federal law (2 U. S. C. §441b of Bipartisan Campaign Reform Act of 2002), prohibiting corporations and unions from speech that is an “electioneering communication” or for speech that expressly advocates the election or defeat of a candidate.
During the 2008 presidential campaign non-profit corporation Citizens United wanted to release a documentary critical of then-Senator Hillary Clinton. Concerned about possible civil and criminal penalties for violating §441b, it sought declaratory and injunctive relief, arguing that (1) §441b is unconstitutional. The District Court denied Citizens United a preliminary injunction and granted appellee Federal Election Commission(FEC) summary judgment.
In it’s January 21, 2010 ruling, the Supreme Court concluded that since it could not resolve this issue alone “without chilling political speech” it was also necessary to consider, and ultimately overrule, the precedent established in Austin v. Michigan Chamber of Commerce (494 U. S. 652) that political speech may be banned based on the speaker’s corporate identity.
The Majority Decision
“Austin is overruled, so it provides no basis for allowing the Government to limit corporate independent expenditures. As the Government appears to concede, overruling Austin “effectively invalidate[s] not only BCRA Section203, but also 2 U. S. C. 441b’s prohibition on the use of corporate treasury funds for express advocacy.” (citation omitted). Section 441b’s restrictions on corporate independent expenditures are therefore invalid and cannot be applied to Hillary…”
Deciding that “Section 441b’s prohibition on corporate independent expenditures is thus a ban on speech” the decision concluded: “… The First Amendment underwrites the freedom to experiment and to create in the realm of thought and speech. Citizens must be free to use new forms, and new forums, for the expression of ideas. The civic discourse belongs to the people, and the Government may not prescribe the means used to conduct it.” (citation omitted)
So, disregarding partial concurrences and partial dissents, here’s how the 5 – 4 decision was made:
KENNEDY delivered the opinion, in which ROBERTS, SCALIA, ALITO and THOMAS concurred. STEVENS filed a dissenting (in part) opinion, in which GINSBURG, BREYER, and SOTOMAYOR joined.
Scalia’s Concurring Opinion
Scalia’s 8-page concurring opinion (page 79 - 87) is mostly a snarky exercise in rebutting Stevens’ dissent, saying that while the purports to show that “today’s decision is not supported by the original understanding of the First Amendment. The dissent attempts this demonstration, however, in splendid isolation from the text of the First Amendment.”
Further, “the dissent embarks on a detailed exploration of the Framers’ views about the 'role of corporations in society.' (citation ommitted). The Framers didn’t like corporations, the dissent concludes, and therefore it follows (as night the day) that corporations had no rights of free speech. Of course the Framers’ personal affection or disaffection for corporations is relevant only insofar as it can be thought to be reflected in the understood meaning of the text they enacted—not, as the dissent suggests, as a freestanding substitute for that text…. Despite the corporation-hating quotations the dissent has dredged up, it is far from clear that by the end of the 18th century corporations were despised. If so, how came there to be so many of them?” (page 79 - 80)
The Dissenting Opinion
The dissent seems pretty straightforward: “The real issue in this case concerns how, not if, the appellant may finance its electioneering. Citizens United is a wealthy nonprofit corporation that runs a political action committee (PAC) with millions of dollars in assets. Under the Bipartisan Campaign Reform Act of 2002 (BCRA), it could have used those assets to televise and promote Hillary: The Movie wherever and whenever it wanted to. It also could have spent unrestricted sums to broadcast Hillary at any time other than the 30 days before the last primary election. Neither Citizens United’s nor any other corporation’s speech has been “banned,” ante, at 1. All that the parties dispute is whether Citizens United had a right to use the funds in its general treasury to pay for broadcasts during the 30-day period. The notion that the First Amendment dictates an affirmative answer to that question is, in my judgment, profoundly misguided. Even more misguided is the notion that the Court must rewrite the law relating to campaign expenditures by for profit corporations and unions to decide this case.
The basic premise underlying the Court’s ruling is its iteration, and constant reiteration, of the proposition that the First Amendment bars regulatory distinctions based on a speaker’s identity, including its “identity” as a corporation. While that glittering generality has rhetorical appeal, it is not a correct statement of the law. Nor does it tell us when a corporation may engage in electioneering that some of its shareholders oppose. It does not even resolve the specific question whether Citizens United maybe required to finance some of its messages with the money in its PAC. The conceit that corporations must be treated identically to natural persons in the political sphere is not only inaccurate but also inadequate to justify the Court’s disposition of this case.” (page 88 – 89).
Stevens also takes issue with the majority opinion’s judicial activism in ignoring stare decisis (precedent) and overruling Austin when Citizens United didn’t even ask it to do so. “In fact, no one has argued to us that Austin’s rule has proved impracticable, and not a single for-profit corporation, union, or State has asked us to overrule it. Quite to the contrary, leading groups representing the businesscommunity, organized labor, and the nonprofit sector, together with more than half of the States, urge that we preserve Austin.” (citations omitted) (page 108 – 109).
My favorite part of the 57-page majority opinion were these gems:
“References to massive corporate treasuries should not mask the real operation of this law. Rhetoric ought not obscure reality.” (page 40); and
“That speakers may have influence over or access to elected officials does not mean that those officials are corrupt. And the appearance of influence or access will not cause the electorate to lose faith in this democracy.” (page 44).
So, not even addressing the threat that foreign corporations can now use their money to influence U.S. election outcomes, the decision seems to me to be not merely a stealthy extension of the rights of corporations but (as night follows day) a giant step towards fascism in America. Too bad.