Giving a voice to the inanimate: the right of a corporation to political free speech.

• Author: Osterlind, Alex
• Position: Case note

Citizens United v. Federal Election Commission, 130 S. Ct. 876 (2010).

1. INTRODUCTION

   The decisions of the United States Supreme Court invariably incite considerable commentary from the general public. However, rarely does a judicial decision spawn such a vast condemnation from the other two branches of government as that witnessed after the Supreme Court case of Citizens United v. Federal Election Commission. (1) So controversial was the Court's decision that President Barack Obama disparaged the ruling in the State of the Union address, lambasting the decision as an "open[ing of] the floodgates for special interests--including foreign corporations--to spend without limit in [United States] elections." (2) President Obama pejoratively continued, "I don't think American elections should be bankrolled by America's most powerful interests, or worse, by foreign entities." (3) Unfortunately, the President's treatment of Citizens United is partially incorrect, as the Court's holding only invalidated a U.S. statute prohibiting corporate political spending by domestic entities; (4) foreign nationals, including foreign corporations, remain subject to the federal statutory prohibition on election campaign contributions. (5) The President's mischaracterization of the Citizens United decision is a common misconception, but even sans fallacious warnings, the crux of the decision tests the boundaries of the Constitution's most eminent right--the First Amendment right to freedom of speech. (6)

   This Note examines the concept of corporate personhood and whether the state-created corporate entity is contemplated by the First Amendment. To discuss this controversy in relation to federal election laws constraining corporate financing, this Note first explains the particulars giving rise to the Citizens United case. Next, this Note examines the legislative and judicial treatment of corporate financing laws in regard to elections. Building upon this milieu, this Note presents the viewpoints of both those opposed to unrestricted corporate political speech as well as those championing a broad interpretation of the First Amendment that encompasses the corporate entity. Finally, this Note concludes that while a dramatic decision like Citizens United would normally warrant a swift remedial response from Congress, the Court's unambiguous construction of the First Amendment has effectively foreclosed any legislative response short of a constitutional amendment.

2. FACTS AND HOLDING

   The 2008 presidential election generated tremendous public attention, manifested most saliently in the Democratic presidential primaries, which featured two potential firsts for the office of the President of the United States: an African American in Barack Obama and a woman in Hillary Rodham Clinton. Predictably, the fervor surrounding the Democratic presidential primaries entailed a bevy of propaganda commensurate with the vehemence of those supporting each candidate. One particular production straddled the line separating an informative documentary from an impermissible "electioneering communication," which "refers to a clearly identified candidate for Federal office" and "is made within ... 30 days before a primary" election. (7) Citizens United released the film in controversy, Hillary: The Movie (Hillary), in January 2008. (8) Citizens United, a nonprofit corporation, derives most of its twelve million dollar budget from individual donations; however, a fraction of Citizens United's budget originates from for-profit corporations. (9)

   This budget afforded Citizens United the opportunity to release and distribute the provocative Hillary. (10) Hillary is a ninety-minute documentary focusing on the titular political figure--then-Senator Hillary Clinton. (11) The substantive content of Hillary is an amalgamation of interviews with numerous individuals, including political commentators, which cast then-Senator Clinton in an unfavorable light. (12) Unsatisfied with their sales from both the theatrical and DVD releases of Hillary, Citizens United sought to expand Hillary's distribution through video-on-demand. (13) To publicize the new format release of Hillary, Citizens United produced several negative television advertisements about then-Senator Clinton succeeded by the name of the movie and the movie's website address. (14) However, the time period in which Citizens United intended to distribute both the television ads and the video-on-demand version of Hillary was within thirty days of the 2008 Democratic primary election. (15)

   Anticipating reprisal by the Federal Election Commission (FEC) for distributing a film encompassed by the statutory prohibition of independent electioneering expenditures derived from corporate capital, (16) Citizens United sought injunctive relief against the FEC in the U.S. District Court for the District of Columbia. (17) In the action before the district court, the FEC averred that Citizens United would violate the Bipartisan Campaign Reform Act of 2002 (BCRA) (18) should Citizens United elect to distribute the video-on-demand version of Hillary. (19) In opposition to the FEC's argument, Citizens United defended the video-on-demand broadcast of Hillary on the grounds that BCRA section 203's prohibition of corporate-funded electioneering communications (codified at 2 U.S.C. [section] 441b (20) violated the First Amendment right to free speech, (21) both facially and as applied. (22)

   To support its facial challenge to BCRA's constitutionality, Citizens United claimed recent United States Supreme Court precedent interpreting BCRA (23) "left the door open to facial invalidation based on the sort of circumstances that have now arisen." (24) Predictably, the district court held that even if Citizens United had a colorable facial challenge, the lower courts were bound to follow the Supreme Court's validation of BCRA. (25)

   In the as-applied challenge, Citizens United represented Hillary as a film concerned with issues rather than as an electioneering communication expressly advocating the defeat of then-Senator Clinton. (26) Unpersuaded, the district court rejected any notion that Hillary was concerned with legislative issues, but instead found the film to be the functional equivalent of express advocacy because Hillary could only be construed as an account of the inadequacies disqualifying then-Senator Clinton from the office of President. (27) Accordingly, the district court denied Citizens United's motion for preliminary injunction because Citizens United was highly unlikely to prevail on either a facial or as-applied First Amendment challenge to BCRA. (28) Relying upon the same reasoning, the district court subsequently granted the FEC's motion for summary judgment. (29)

   Following the district court's grant of summary judgment to the FEC, Citizens United appealed, and the Supreme Court noted probable jurisdiction to address the issues presented in Citizens United v. FEC (30) in November of 2008. (31) After Citizens United presented its First Amendment claim before the Supreme Court, the Court ordered that the case be reargued. (32) In instructing reargument in Citizens United, the Court found that proper disposition of Citizens United's constitutional challenge to BCRA required the Court to consider overruling Supreme Court precedent (33) addressing the facial validity of BCRA section 203. (34)

   In reargument, Citizens United sought to remove Hillary from BCRA coverage through a series of exemptions. (35) The Court, however, found all theories proposed by Citizens United to remove Hillary from 2 U.S.C. [section] 441b (section 441b) inadequate. (36) Rather than find the failure of Citizens United's arguments for exempting Hillary from section 441b fatal to its claim, the Court instead adopted the view that the arguments were unsatisfactorily narrow. (37) The Court opined that any interpretation of section 441b advanced by Citizens United would necessitate ad hoc scrutiny of every case to determine whether the political speech at issue was banned. (38) Thus, the Court held in Citizens United that it could not "resolve this case on a narrower ground without chilling political speech, speech that is central to the meaning and purpose of the First Amendment." (39) To actualize this finding, the Court invalidated section 441b, thereby overruling the decision of the District Court for the District of Columbia. (40)

3. LEGAL BACKGROUND

   The Court's opinion in Citizens United not only overruled the decision of the district court, but in finding section 441b unconstitutional, the Court was forced to also overrule the earlier Supreme Court decisions of Austin v. Michigan Chamber of Commerce (41) and the portion of McConnell v. FEC (42) upholding BCRA section 203's extension of section 441b's restrictions on independent corporate expenditures. (43) The Court engaged in thorough discussions of section 441b and the Austin and McConnell decisions that upheld it. (44) Fundamentally, the Court opined that "Austin was a significant departure from ancient First Amendment principles" and correspondingly, the decision's rationale was comprehensively defective. (45) Consequently, the Court found the same deficiencies evident in McConnell due to McConnell's reliance on Austin. (46) However, the Court did ground its disapproval of Austin and McConnell in other Supreme Court precedent it found irreconcilable with the two cases. (47)

   1. Statutory Regulation of Independent Corporate Expenditures

      The proscription of corporate independent political expenditures upheld in the Austin and McConnell decisions directly originated nearly two decades earlier with the Federal Election Campaign Act of 1971 (1971 FECA). (48) While the 1971 FECA did increase the requisite disclosure of financial contributions relating to federal campaigns, it was relatively anemic as a prophylactic for corruption. (49) Following disconcerting findings of corruption in the wake...