Citizens United: Strengthening the First Amendment in American Elections

• Author: Carol Herdman
• Position: Capital University Law School, Juris Doctor Candidate, May 2011
• Pages: 723-758

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CITIZENS UNITED: STRENGTHENING THE FIRST AMENDMENT IN AMERICAN ELECTIONS

CAROL HERDMAN^*

―[I]t is our law and our tradition that more speech, not less, is the governing rule.‖¹

I. INTRODUCTION

The 2010 election cycle seemed mostly normal: candidates battled at the local, state, and national levels for control of their governments; issues crowded ballots pertaining to everything from school tax levies to legalization of marijuana;²and citizens complained in typical fashion that they hated politics and could not wait for the election to be over.³Nothing appeared too out of the ordinary except for the seemingly constant references to the recent United States Supreme Court decision, Citizens United v. Federal Election Commission (FEC).⁴The decision, released in January 2010, struck down campaign finance laws that prohibited corporations from making expenditures independent of candidates in federal elections.⁵The Supreme Court was immediately criticized for its opinion,⁶and the debate over whether the Court got it right or wrong carried through the entire election cycle, eliciting strong praise from some and glaring admonition from others.⁷

Copyright © 2011, Carol Herdman.

* Capital University Law School, Juris Doctor Candidate, May 2011. I would like to thank Professor Bradley A. Smith for introducing me to the interesting world of campaign finance law and for all of his insight and encouragement during my time at Capital. I would also like to thank the members of the Capital University Law Review for their helpful suggestions and thoughtful review. Most importantly, I would like to thank my wonderful family and friends who have so patiently supported me these last few years.

¹Citizens United v. FEC, 130 S. Ct. 876, 911 (2010).

²Amanda Feilding, Proposition 19, THE HUFFINGTON POST (Nov. 1, 2010, 7:11 AM), http://www.huffingtonpost.com/amanda-feilding/proposition-19_b_776805.html.

³See, e.g., Tom Fontaine, Groups Slather $478 Million on Races in Senate, House, PITTSBURGH LIVE (Nov. 2, 2010), http://www.pittsburghlive.com/x/pittsburghtrib/news/

election/s_707222.html.

⁴130 S. Ct. 876 (2010).

⁵Id. at 913.

⁶See infra notes 284–86 and accompanying text.

⁷See, e.g., Rosemary Harris Lytle & Judd Golden, Guest Opinion: ACLU’s Support for Citizen’s United, DAILY CAMERA (Jan. 29, 2011, 1:00 AM), http://www.dailycamera.com/

(continued)

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The Court was correct in ruling as it did. The decision was necessary to overturn statutory provisions that were inconsistent with established campaign finance laws and the First Amendment. Furthermore, the panic that flowed from the decision regarding improper influence in elections is unnecessary and unfounded because the decision maintained safeguards put in place to preserve the integrity of American elections.

II. BACKGROUND

Citizens United, a nonprofit, tax-exempt organization,⁸produced a film titled ―Hillary: the Movie,‖ which discussed Senator Hillary Clinton‘s senate record, her White House record during Bill Clinton‘s presidency, and her own presidential bid.⁹The film included ―express opinions on whether she would make a good president.‖¹⁰Citizens United intended to release the movie in early 2008 along with promotional television advertisements for the movie.¹¹However, then-current campaign finance regulations prohibited the desired release date because it overlapped with the primary season for the 2008 presidential election.¹²If Clinton were to become the democratic presidential nominee, Citizens United further wanted to run the television ads within sixty days of the general election, which the campaign finance restrictions also prohibited.¹³

Citizens United filed a complaint in the Federal District Court for the District of Columbia on December 13, 2007,¹⁴seeking a preliminary injunction against any action taken by the FEC against the organization and arguing that then-current campaign finance law was unconstitutional.¹⁵

ci_17229907 (reiterating the American Civil Liberty Union‘s opposition to the ―broad and ill-defined prohibition‖ on electioneering communications in the Bipartisan Campaign Reform Act § 203 that Citizens United struck down). The authors quoted a recent letter in the New York Times decrying the overturn of ―the century-old ban on corporate contributions to political campaigns.‖ Id. The authors replied that Citizens United ―did no such thing‖ and that freedom of political advocacy speech was at stake. Id. ―Granting government the power to decide who should speak, when, and how much is enough is not the answer. Nothing but disaster for the First Amendment flows from that approach.‖ Id.

⁸Citizens United v. FEC, 530 F. Supp. 2d 274, 275 (D.D.C. 2008).

⁹Id.

¹⁰Id.

¹¹Id. at 275–76.

¹²Id. at 276–77.

¹³Id. at 276.

¹⁴Id. at 277.

¹⁵Id. at 277–78.

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The district court disagreed with Citizens United‘s arguments, holding that the movie was subject to regulation by laws that were upheld by the Supreme Court in a prior challenge¹⁶and that campaign finance laws could regulate the advertisements as well.¹⁷The court refused to grant Citizens United‘s request for an injunction against the FEC.¹⁸

Citizens United appealed to the Supreme Court, arguing that the Supreme Court should overturn the decision of the district court.¹⁹The

organization claimed there was no sufficient governmental interest that would be served by regulating ―Hillary: the Movie‖ or any other video-on-demand.²⁰Citizens United also challenged two previous Supreme Court decisions: Austin v. Michigan Chamber of Commerce,²¹which expanded the government‘s ability to regulate corporate campaign speech;²²and a

portion of McConnell v. FEC,²³which upheld as constitutional § 203 of the Bipartisan Campaign Reform Act ( BCRA),²⁴permitting regulation of any broadcast, satellite, or cable communication that refers to a clearly identified federal candidate and that is made within sixty days of a general election or thirty days of a primary election.²⁵

The Supreme Court granted certiorari and heard oral arguments on March 24, 2009.²⁶During a particularly noteworthy exchange, Justice Alito asked Deputy Solicitor General Malcolm Stewart, who was arguing in favor of upholding prohibitions on corporate campaign speech, if Congress had to draw the line at regulating only broadcast and cable ads or if Congress could extend regulations to cover the internet, DVDs, or even

¹⁶Id. at 279–80.

¹⁷Id. at 280–81.

¹⁸Id.

¹⁹Brief for Appellant at 12, Citizens United v. FEC, 130 S. Ct. 876 (2010) (No. 08-205), available at http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/08-205_ Appellant.pdf.

²⁰Id. at 13.

²¹494 U.S. 652 (1990).

²²Id. at 668–69.

²³540 U.S. 93 (2003).

²⁴Id. at 209.

²⁵See id. at 104–05 (describing issue ads as ―the functional equivalent of express advocacy‖ so as to allow regulation of their broadcast in the respective thirty-day and sixty-day periods leading up to federal primary and general elections).

²⁶Transcript of Oral Argument at 1, Citizens United v. FEC, 130 S. Ct. 876 (2010) (No. 08-205).

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books.²⁷Stewart responded that Congress could extend the campaign restrictions to other media as well, to which Justice Alito replied: ―That‘s pretty incredible.‖²⁸Stewart confirmed that he believed Congress could prohibit the use of general treasury funds to publish books, requiring corporations instead to publish books using Political Action Committee (PAC) funds.²⁹Pointing out that most publishing companies are corporations, Justice Alito asked Stewart to clarify whether he thought a publisher that is a corporation could be prohibited from selling a book.³⁰

Stewart noted that certain media corporations could possibly be exempt from regulation but conceded that an advocacy corporation could be banned from selling a book, or even advertising the book, if the book contained communications that referenced a candidate for election.³¹The

idea that Congress could use campaign finance law to ban the publishing of books did not seem to sit well with the Court.³²

The Court was expected to hand down its ruling on the matter sometime in the early summer of 2009;³³however, it surprisingly ordered a rehearing of oral arguments set for September 9, 2009—two months before the Court‘s next term was to open.³⁴The Court specifically requested that the parties file supplemental briefs addressing the following question: Should the Court overrule either or both Austin and the section of McConnell that addresses the facial validity of § 203 of the BCRA³⁵

²⁷Id. at 26–27.

²⁸Id. at 27.

²⁹Id.

³⁰Id.

³¹Id. at 28. Justice Roberts subsequently asked, ―If it has one name, one use of the candidate‘s name, it would be covered, correct?‖ Id. at 29. Stewart replied, ―That‘s correct.‖ Id.

³²See id. at 28. Justice Kennedy extended the discussion to the Kindle and its electronic books, expressing concern that transmittal via satellite would permit a total ban under the statute of a work by a corporate author of campaign advocacy. Id. at 29. Justice Breyer also raised the specter of a constitutional question in the event that a corporation ―had to pay for‖ campaign advocacy in book form and ―couldn‘t pay for it through the PAC.‖ Id. at 31.

³³Court Calls for Rehearing in Citizens United Case, 33 NEWS MEDIA & THE L. 13

(2009), available at http://www.rcfp.org/news/mag/33-3/court_calls_for_rehearing_in_ citizens_ united_case_13.html.

³⁴Associated Press, Anti-Hillary Dispute to Be Re-heard, FIRST AMENDMENT CENTER (June 29, 2009), http://www.firstamendmentcenter.org/news.aspx?id=21767.

³⁵Id.

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