Citizens United v. Federal Election Commission
Encyclopedia
Citizens United v. Federal Election Commission, , was a landmark decision
by the United States Supreme Court
holding that the First Amendment
prohibits government from censoring political broadcasts in candidate elections when those broadcasts are funded by corporations or unions. The 5–4 decision originated in a dispute over whether the non-profit corporation Citizens United
could air a film critical of Hillary Clinton, and whether the group could advertise the film in broadcast ads featuring Clinton's image, in apparent violation of the 2002 Bipartisan Campaign Reform Act
, commonly known as the McCain–Feingold Act in reference to its primary Senate sponsors.
The decision reached the Supreme Court on appeal from a January 2008 decision by the United States District Court for the District of Columbia
. The lower court decision had upheld provisions of the 2002 act, which prevented the film Hillary: The Movie from being shown on television within 30 days of 2008 Democratic primaries
.
The Supreme Court reversed the lower court, striking down those provisions of the McCain–Feingold Act that prohibited all corporations, both for-profit and not-for-profit, and unions from broadcasting “electioneering communications.” An "electioneering communication" was defined in McCain–Feingold as a broadcast, cable, or satellite communication that mentioned a candidate within 60 days of a general election or thirty days of a primary. The decision overruled Austin v. Michigan Chamber of Commerce
(1990) and partially overruled McConnell v. Federal Election Commission
(2003). McCain–Feingold had previously been weakened, without overruling McConnell, in Federal Election Commission v. Wisconsin Right to Life, Inc.
(2007). The Court did uphold requirements for disclaimer and disclosure by sponsors of advertisements. The case did not involve the federal ban on direct contributions from corporations or unions to candidate campaigns or political parties, which remain illegal in races for federal office.
, a conservative nonprofit 501(c)(4) organization, filed a complaint before the Federal Election Commission
(FEC) charging that ads for Michael Moore's
film Fahrenheit 9/11
, which was critical of the Bush administration's
response to the terrorist attacks on September 11, 2001, constituted political advertising and thus could not be aired 60 days before an election or 30 days before a party convention. On August 5, the FEC dismissed the complaint finding no evidence that the movie's ads had broken the law. The FEC dismissed a further complaint filed in 2005, holding:
In the wake of these decisions allowing the promotion of the documentary Fahrenheit 9/11
during the 2004 campaign, Citizens United
sought to run television commercials during the 2008 campaign promoting its political documentary Hillary: The Movie
, which is critical of then-Senator Hillary Clinton, and to air the movie on DirecTV. In January 2008, the United States District Court for the District of Columbia
ruled that the commercials violated provisions in the Bipartisan Campaign Reform Act of 2002 (McCain–Feingold) restricting "electioneering communications" 30 days before primaries. Though the political action committee claimed that its film was fact-based and nonpartisan, the lower Court found that the film had no purpose other than to discredit Clinton's candidacy for President.
The Supreme Court docketed the case on August 18, 2008, and heard oral argument on March 24, 2009. In the course of the original oral argument, then-Deputy Solicitor General Malcolm L. Stewart, representing the FEC, argued that under the Austin decision, the government would have the power to ban books, if those books contained even one sentence expressly advocating the election or defeat of a candidate, and were published or distributed by a corporation or union. Under questioning from the Court, Stewart further argued that under "Austin" the government could ban the distribution of political books over Amazon's Kindle, or prevent a union from hiring a writer to author a political book.
On June 29, 2009, the Supreme Court issued an order directing the parties to reargue the case on September 9 after briefing whether it might be necessary to overrule Austin v. Michigan Chamber of Commerce and/or McConnell v. Federal Election Commission to decide the case. Justice Stevens noted in his dissent that in its prior motion for summary judgment Citizens United had abandoned its facial challenge to Section 203, with the parties agreeing to the dismissal of the claim. Stevens argued that the Court chose to hear argument on issues the parties had agreed were not to be presented to the Court and that it reached a decision on constitutionality when it could have found for the plaintiffs on narrower grounds.
The case, on reargument, was the first to be heard by Justice Sotomayor
and the first case to be argued in the Supreme Court by Solicitor General Elena Kagan
. Also arguing before the Court were former Bush solicitor general Ted Olson and First Amendment lawyer Floyd Abrams
for Citizens United, and former Clinton solicitor general Seth Waxman defending the statute on behalf of various intervenors that supported the law. Legal scholar Erwin Chemerinsky
called it "one of the most important First Amendment cases in years".
The majority opinion, authored by Justice Kennedy
, found that prohibition of all independent expenditures by corporations and unions was invalid and could not be applied to spending such as that in Hillary: The Movie. 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." He also noted that since there was no way to distinguish between media and other corporations, these restrictions would allow Congress to suppress political speech in newspapers, books, television and blogs. The Court overruled Austin v. Michigan Chamber of Commerce
, which had previously held that a Michigan campaign finance act that prohibited corporations from using treasury money to support or oppose candidates in elections did not violate the First and Fourteenth Amendments. The Court also overruled the part of McConnell v. Federal Election Commission
that upheld BCRA's extension of the Federal Election Campaign Act's restrictions on independent corporate expenditures to include "electioneering communications".
The Court found that BCRA §§201 and 311 (provisions requiring disclosure of the funder) were valid as applied to the ads for Clinton and to the movie itself.
implicated in this case".
Chief Justice Roberts wrote to further explicate and defend the court's statement that "there is a difference between judicial restraint and judicial abdication". The Chief Justice argued that there are times during which overruling prior decisions is necessary. Had the courts never gone against stare decisis, "segregation would be legal, minimum wage laws would be unconstitutional, and the Government could wiretap ordinary criminal suspects without first obtaining warrants". Roberts' concurrence recited a plethora of case law in which the court had ruled against jurisprudence. Ultimately, however, Roberts argued, "Stare decisis is a doctrine of preservation, not transformation. It counsels deference to past mistakes, but provides no justification for making new ones."
Justice Scalia joined the opinion of the Court, but also wrote a concurring opinion which was joined by Justice Alito in full and by Justice Thomas
in part. Scalia addressed Justice Stevens's dissent, specifically with regard to the notion that the court's decision was not supported by the original understanding of the First Amendment. Scalia stated that Stevens dissent was "in splendid isolation from the text of the First Amendment. It never shows why 'the freedom of speech' that was the right of Englishmen did not include the freedom to speak in association with other individuals, including association in the corporate form." He further considered the dissent’s exploration of the Framers’ views about the "role of corporations in society" to be misleading, and even if valid, irrelevant to the text. Scalia principally argued that the first amendment was written in "terms of speech, not speakers" and that "Its text offers no foothold for excluding any category of speaker."
A dissenting opinion by Justice Stevens was joined by Justice Ginsburg, Justice Breyer, and Justice Sotomayor. To emphasize his unhappiness with the majority, Stevens took the relatively rare step of reading part of his 90 page dissent from the bench. Stevens concurred in the Court's decision to sustain BCRA's disclosure provisions, but dissented from the principal holding of the majority opinion. The dissent argued that the Court's ruling "threatens to undermine the integrity of elected institutions across the Nation. The path it has taken to reach its outcome will, I fear, do damage to this institution." The dissent also argued that the Court's holding that BCRA §203 was facially unconstitutional was ruling on a question not brought before it by the litigants, and so claimed that the majority "changed the case to give themselves an opportunity to change the law." Stevens concluded his dissent:
Justice Thomas
wrote a separate opinion concurring in all but part IV of the Court's decision (upholding the disclosure provisions). In order to protect the anonymity of contributors to organizations exercising free speech, Thomas would have struck down the reporting requirements of BCRA §201 and §311 as well, rather than allowing them to be challenged only on a case-specific basis. Thomas's primary argument was that anonymous free speech is protected and that making contributor lists public makes the contributors vulnerable to retaliation, citing instances of retaliation against contributors to both sides of a then recent California voter initiative. Thomas also expressed concern that such retaliation could extend to retaliation by elected officials. Thomas did not consider "as-applied challenges" to be sufficient to protect against the threat of retaliation.
v. FEC from politicians, academics, attorneys, advocacy groups and journalists.
, who attended the announcement of the ruling, said the court "struck a blow for the First Amendment".
Republican campaign consultant Ed Rollins
opined that the decision adds transparency to the election process and will make it more competitive.
, the group filing the lawsuit said, "Today's U.S. Supreme Court decision allowing Citizens United to air its documentary films and advertisements is a tremendous victory, not only for Citizens United but for every American who desires to participate in the political process." During litigation, Citizens United
had support from the United States Chamber of Commerce
and the National Rifle Association
.
Campaign finance attorney Cleta Mitchell, who had filed an amicus curiae
brief on behalf of two advocacy organizations opposing the ban, wrote that "The Supreme Court has correctly eliminated a constitutionally flawed system that allowed media corporations (e.g., The Washington Post Co.) to freely disseminate their opinions about candidates using corporate treasury funds, while denying that constitutional privilege to Susie's Flower Shop Inc. ... The real victims of the corporate expenditure ban have been nonprofit advocacy organizations across the political spectrum."
Heritage Foundation
fellow Hans A. von Spakovsky
, a former Republican member of the Federal Election Commission, said "The Supreme Court has restored a part of the First Amendment that had been unfortunately stolen by Congress and a previously wrongly-decided ruling of the court."
Libertarian Cato Institute
analysts John Samples and Ilya Shapiro wrote that restrictions on advertising were based on the idea “that corporations had so much money that their spending would create vast inequalities in speech that would undermine democracy.” However, “to make campaign spending equal or nearly so, the government would have to force some people or groups to spend less than they wished. And equality of speech is inherently contrary to protecting speech from government restraint, which is ultimately the heart of American conceptions of free speech.”
The American Civil Liberties Union
filed an amicus brief that supported the decision, saying that "section 203 should now be struck down as facially unconstitutional", though membership was split over the implications of the ruling and its board sent the issue to its special committee on campaign finance for further consideration.
, former chairman of the FEC, founder of the Center for Competitive Politics
and a leading proponent of deregulation of campaign finance, wrote that the major opponents of political free speech are "incumbent politicians" who "are keen to maintain a chokehold on such speech". Empowering "small and midsize corporations—and every incorporated mom-and-pop falafel joint, local firefighters’ union, and environmental group—to make its voice heard" frightens them. In response to statements by President Obama and others that the ruling would allow foreign entities to gain political influence through U.S. subsidiaries, Smith pointed out that the decision did not overturn the ban on political donations by foreign corporations and the prohibition on any involvement by foreign nationals in decisions regarding political spending by U.S. subsidiaries, which are covered by other parts of the law.
Campaign finance expert Jan Baran, a member of the Commission on Federal Ethics Law Reform
, agreed with the decision, writing that "The history of campaign finance reform is the history of incumbent politicians seeking to muzzle speakers, any speakers, particularly those who might publicly criticize them and their legislation. It is a lot easier to legislate against unions, gun owners, 'fat cat' bankers, health insurance companies and any other industry or 'special interest' group when they can't talk back." Baran further noted that in general conservatives and libertarians praised the ruling's preservation of the First Amendment and freedom of speech, but that liberals
and campaign finance reformers criticized it as greatly expanding the role of corporate money in politics.
Attorney Kenneth Gross, former associate general counsel of the FEC, wrote that corporations relied more on the development of long-term relationships, political action committees and personal contributions, which were not affected by the decision. He held that while trade associations might seek to raise funds and support candidates, corporations which have “signed on to transparency agreements regarding political spending” may not be eager to give.
The New York Times asked seven academics to opine on how corporate money would reshape politics as a result of the court's decision. Three of these wrote that the effects would be minimal or positive: Christopher Cotton, a University of Miami
School of Business assistant professor of economics, wrote that “There may be very little difference between seeing eight ads or seeing nine ads (compared to seeing one ad or two). And, voters recognize that richer candidates are not necessarily the better candidates, and in some cases, the benefit of running more ads is offset by the negative signal that spending a lot of money creates. University of California professor of law Eugene Volokh
held that the “most influential actors in most political campaigns” are media corporations which “overtly editorialize for and against candidates, and also influence elections by choosing what to cover and how to cover it.” Holding that corporations like Exxon
would fear alienating voters by supporting candidates, the decision really meant that voters would hear “more messages from more sources.” Joel Gora, a professor at Brooklyn Law School
who had previously argued the case of Buckley v. Valeo
on behalf of the American Civil Liberties Union
, said that the decision represented "a great day for the First Amendment" writing that the Court had "dismantled the First Amendment 'caste system' in election speech".
, criticized McCain–Feingold's exception for media corporations from the ban on corporate electioneering, writing that it “makes no sense” that the paper could make endorsements up until the day of the election but advocacy groups could not. "While the influence of money on the political process is troubling and sometimes corrupting, abridging political speech is the wrong way to counterbalance that influence.”
Anthony Dick in National Review
countered a number of arguments against the decision, asking rhetorically, "is there something uniquely harmful and/or unworthy of protection about political messages that come from corporations and unions, as opposed to, say, rich individuals, persuasive writers, or charismatic demagogues?" He noted that "a recent Gallup poll shows that a majority of the public actually agrees with the Court that corporations and unions should be treated just like individuals in terms of their political-expenditure rights". A Gallup poll taken in October 2009 and released soon after the decision showed 57 percent of those surveyed agreed that contributions to political candidates are a form of free speech and 55 percent agreed that the same rules should apply to individuals, corporations and unions. Sixty-four percent of Democrats and Republicans believed campaign donations are a form of free speech.
Chicago Tribune
editorial board member Steve Chapman
wrote "If corporate advocacy may be forbidden as it was under the law in question, it's not just Exxon Mobil and Citigroup that are rendered mute. Nonprofit corporations set up merely to advance goals shared by citizens, such as the American Civil Liberties Union and the National Rifle Association, also have to put a sock in it. So much for the First Amendment goal of fostering debate about public policy."
stated that the decision "gives the special interests and their lobbyists even more power in Washington — while undermining the influence of average Americans who make small contributions to support their preferred candidates". Obama later elaborated in his weekly radio address saying, "this ruling strikes at our democracy itself" and "I can't think of anything more devastating to the public interest". On January 27, 2010, Obama further condemned the decision during the 2010 State of the Union Address
, stating that, "Last week, the Supreme Court reversed a century of law to open the floodgates for special interests — including foreign corporations — to spend without limit in our elections. Well I don't think American elections should be bankrolled by America's most powerful interests, or worse, by foreign entities."
Democratic senator Russ Feingold
, a lead sponsor of the 2002 Bipartisan Campaign Reform Act
, stated "This decision was a terrible mistake. Presented with a relatively narrow legal issue, the Supreme Court chose to roll back laws that have limited the role of corporate money in federal elections since Teddy Roosevelt was president." Representative Alan Grayson
, a Democrat, stated that it was "the worst Supreme Court decision since the Dred Scott case, and that the court had opened the door to political bribery and corruption in elections to come. Democratic congresswoman Donna Edwards
, along with constitutional law professor and Maryland Democratic State Senator Jamie Raskin
, have advocated petitions to reverse the decision by means of constitutional amendment. Rep. Leonard Boswell
introduced legislation to amend the constitution. Senator John Kerry
also called for an Amendment to overrule the decision.
Republican Senator John McCain
, co-crafter of the 2002 Bipartisan Campaign Reform Act
and the party's 2008 presidential nominee, said "there's going to be, over time, a backlash ... when you see the amounts of union and corporate money that's going to go into political campaigns". McCain was "disappointed by the decision of the Supreme Court and the lifting of the limits on corporate and union contributions" but not surprised by the decision, saying that "It was clear that Justice Roberts, Alito and Scalia, by their very skeptical and even sarcastic comments, were very much opposed to BCRA." He pointed out that "Justice Rehnquist and Justice O'Connor, who had taken a different position on this issue, both had significant political experience, while Justices Roberts, Alito and Scalia have none." (In fact, Rehnquist had joined Justices Scalia, Thomas, and Kennedy in dissenting in McConnell v. FEC). Republican Senator Olympia Snowe
opined that "Today's decision was a serious disservice to our country."
Sanda Everette, co-chair of the Green Party, stated that "The ruling especially hurts the ability of parties that don't accept corporate contributions, like the Green Party, to compete." (In fact, 2 U.S.C. 441i, which was not altered by the decision in Citizens United, prohibits all parties from accepting corporate contributions). Another Green Party officer, Rich Whitney
, stated "In a transparently political decision, a majority of the US Supreme Court overturned its own recent precedent and paid tribute to the giant corporate interests that already wield tremendous power over our political process and political speech."
Ralph Nader
, a lawyer who placed third in the popular vote in the last three presidential elections, condemned the ruling, saying that "With this decision, corporations can now directly pour vast amounts of corporate money, through independent expenditures, into the electoral swamp already flooded with corporate campaign PAC contribution dollars." He called for shareholder resolutions asking company directors to pledge not to use company money to favor or oppose electoral candidates. Pat Choate
, Reform Party
candidate stated, "The court has, in effect, legalized foreign governments and foreign corporations to participate in our electoral politics."
, speaking for the Organization for Security and Co-operation in Europe
's election body
, which has overseen over 150 elections, stated that the ruling may adversely affect the organization's two commitments of "giving voters a genuine choice and giving candidates a fair chance" in that "it threatens to further marginalize candidates without strong financial backing or extensive personal resources, thereby in effect narrowing the political arena".
Former supreme court Justice Sandra Day O’Connor criticized the decision only obliquely, but warned that “In invalidating some of the existing checks on campaign spending, the majority in Citizens United has signaled that the problem of campaign contributions in judicial elections might get considerably worse and quite soon.”
Richard L. Hasen
, professor of election law
at Loyola Law School
, argued that the ruling "is activist, it increases the dangers of corruption in our political system and it ignores the strong tradition of American political equality". He also described Justice Kennedy's "specter of blog censorship" as sounding more like "the rantings of a right-wing talk show host than the rational view of a justice with a sense of political realism".
Three other scholars writing in the aforementioned New York Times article were critical. Heather K. Gerken, Professor of Law at Yale Law School
wrote that "The court has done real damage to the cause of reform, but that damage mostly came earlier, with decisions that made less of a splash." Michael Waldman
, director of the Brennan Center for Justice
at N.Y.U. School of Law, opined that the decision "matches or exceeds Bush v. Gore
in ideological or partisan overreaching by the court" and Fred Wertheimer
, founder and president of Democracy 21
considered it "a disaster for the American people".
Subsequent research by John Coates, Professor of Law at Harvard Law School
, has shown that corporations with weaker, less shareholder-friendly corporate governance have been more likely to engage in corporate political activity, and spend more when they do.
Professors Lucian Bebchuk at Harvard Law School
and Richard Squire at Columbia Law School
argue that the interests of directors and executives may significantly diverge from those of shareholders with respect to political speech decisions, that these decisions may carry special expressive significance from shareholders, and that as a result of the Citizens United decision, new laws providing shareholders with a greater role in determining how corporate money is spent on political activity would be beneficial to shareholders.
asked the Department of Justice
to investigate conflicts of interest on the part of two of the Justices in the majority. The organization said that Thomas's wife was the founder and president of Liberty Central
, a conservative
political advocacy group that would be empowered to accept corporate contributions to run campaign advertisements, and that Scalia and Thomas had participated in political strategy sessions organized by David H. Koch
and Charles G. Koch
, who stood to "benefit from the decision" by taking advantage of the rights upheld by the Court.
"Move to Amend", a national coalition of hundreds of organizations and over 113,000 individuals was formed in response to the ruling. It is seeking legislation or amendment that would restrict corporations and corporate interest groups from excessive influence in elections and lawmaking. A primary objective is to abolish corporate personhood and to hold corporations accountable to the public. The organization has local chapters in many states and sponsors public awareness activities.
called it the "most serious threat to American democracy in a generation". The Christian Science Monitor wrote that the Court had declared “outright that corporate expenditures cannot corrupt elected officials, that influence over lawmakers is not corruption, and that appearance of influence will not undermine public faith in our democracy.”
Some journalists and politicians reacted strongly to the decision. An online media journal Veterans Today called for the "immediate arrest" of the justices voting in the majority for treason. Keith Olbermann
of MSNBC
said that with this decision "within ten years every politician in this country will be a prostitute" and compared it unfavorably to Dred Scott v. Sandford
, an 1857 case that held that African-Americans could not be citizens.
-Samuel Alito
face-off during the President's State of the Union address. There, President Obama argued that the decision "reversed a century of law" (strictly, the federal ban on corporate and union expenditures dates from 1947) and that it would allow "foreign corporations to spend without limits in our elections," during which Justice Alito, in the audience, perceivably mouthed the words “not true.” This event was extensively commented by most political bloggers, with a big chunk of the coverage concentrated on whether or not foreign corporations would be able to make substantial political contributions in US elections. "In 1910, Congress enacted the Federal Corrupt Practices Act. See 36 Stat. 822. The disclosure requirements of the Federal Corrupt Practices Act were upheld by the Supreme Court in Burroughs v. United States, 54 U.S. 287 (1934), as a Constitutional exercise of Congressional power to prevent corruption in elections: 'The power of Congress to protect the election . . . from corruption being clear, the choice of means to that end presents a question primarily addressed to the judgment of Congress…. Congress reached the conclusion that public disclosure of political contributions, together with the names of contributors and other details, would tend to prevent corrupt use of money to affect elections. The verity of this conclusion reasonably cannot be denied.'" Citizens United clearly impugned a century of jurisprudence that affirmed the constitutionality of legislative checks and oversight of election financing, i.e. the power of congress to regulate and protect the electoral process.
A Gallup Poll conducted in October 2009, after oral argument, but released after the Supreme Court released its opinion, found that 57 percent of those surveyed “agreed that money given to political candidates is a form of free speech” and 55 percent agreed that the “same rules should apply to individuals, corporations and unions.” However, in the same poll respondents by 52% to 41% prioritized limits on campaign contributions over protecting rights to support campaigns and 76% thought the government should be able to place limits on corporation or union donations.
Separate polls by various conservative organizations, including the plaintiff, Citizens United
, and the Center for Competitive Politics
found support for the decision. In particular, the Center for Competitive Politics poll found that 51% of respondents believed that Citizens United should have a right to air ads promoting Hillary: The Movie, although only 22% of the respondents had heard of the case.
Senator Dick Durbin (D-IL) proposed that candidates who sign up small donors receive $900,000 in public money. Others proposed that laws on corporate governance be amended to assure that shareholders vote on political expenditures.
In February 2010, Senator Charles E. Schumer of New York, immediate past Chairman of the Democratic Senatorial Campaign Committee, and Representative Chris Van Hollen
of Maryland, Chairman of the Democratic Congressional Campaign Committee, outlined legislation aimed at undoing the decision. In April 2010, they introduced such legislation in the Senate and House, respectively. On June 24, 2010, H.R.5175 (The DISCLOSE Act
) passed in the House of Representatives but failed in the Senate. It would have required additional disclosure by corporations of their campaign expenditures. The law, if passed, would also have prohibited political spending by U.S. companies with twenty percent or more foreign ownership, and by most government contractors.
The DISCLOSE Act included exemptions to its rules given to certain special interests such as the National Rifle Association
and the American Association of Retired Persons. These gaps within the proposal attracted criticism from lawmakers on both political parties. "They are auctioning off pieces of the First Amendment in this bill... The bigger you are, the stronger you are, the less disclosure you have," said Republican Congressman Dan Lungren of California. Democratic Congressman Adam Schiff of California commented, "I wish there had been no carve-outs".
The DISCLOSE Act twice failed to pass the U.S. Senate in the 111th Congress, in both instances reaching only 59 of the 60 votes required to overcome a unified Republican filibuster.
Historical background
Landmark decision
Landmark court decisions establish new precedents that establish a significant new legal principle or concept, or otherwise substantially change the interpretation of existing law...
by the United States Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
holding that the First Amendment
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
prohibits government from censoring political broadcasts in candidate elections when those broadcasts are funded by corporations or unions. The 5–4 decision originated in a dispute over whether the non-profit corporation Citizens United
Citizens United
Citizens United is a conservative non-profit organization in the United States. Its president and chairman is David Bossie.-Overview:Citizens United describes its mission as being dedicated to restoring the United States government to "citizens' control" and to "assert American values of limited...
could air a film critical of Hillary Clinton, and whether the group could advertise the film in broadcast ads featuring Clinton's image, in apparent violation of the 2002 Bipartisan Campaign Reform Act
Bipartisan Campaign Reform Act
The Bipartisan Campaign Reform Act of 2002 is a United States federal law that amended the Federal Election Campaign Act of 1971, which regulates the financing of political campaigns. Its chief sponsors were Senators Russell Feingold and John McCain...
, commonly known as the McCain–Feingold Act in reference to its primary Senate sponsors.
The decision reached the Supreme Court on appeal from a January 2008 decision by the United States District Court for the District of Columbia
United States District Court for the District of Columbia
The United States District Court for the District of Columbia is a federal district court. Appeals from the District are taken to the United States Court of Appeals for the District of Columbia Circuit The United States District Court for the District of Columbia (in case citations, D.D.C.) is a...
. The lower court decision had upheld provisions of the 2002 act, which prevented the film Hillary: The Movie from being shown on television within 30 days of 2008 Democratic primaries
Democratic Party (United States) presidential primaries, 2008
The 2008 Democratic presidential primaries were the selection process by which voters of the Democratic Party chose its nominee for President of the United States in the 2008 U.S. presidential election...
.
The Supreme Court reversed the lower court, striking down those provisions of the McCain–Feingold Act that prohibited all corporations, both for-profit and not-for-profit, and unions from broadcasting “electioneering communications.” An "electioneering communication" was defined in McCain–Feingold as a broadcast, cable, or satellite communication that mentioned a candidate within 60 days of a general election or thirty days of a primary. The decision overruled Austin v. Michigan Chamber of Commerce
Austin v. Michigan Chamber of Commerce
Austin v. Michigan Chamber of Commerce, 494 U.S. 652 , was a case in which the Supreme Court of the United States held that the Michigan Campaign Finance Act, which prohibited corporations from using treasury money to support or oppose candidates in elections, did not violate the First and...
(1990) and partially overruled McConnell v. Federal Election Commission
McConnell v. Federal Election Commission
McConnell v. Federal Election Commission, 540 U.S. 93 , is a case in which the United States Supreme Court upheld the constitutionality of most of the Bipartisan Campaign Reform Act of 2002 , often referred to as the McCain–Feingold Act....
(2003). McCain–Feingold had previously been weakened, without overruling McConnell, in Federal Election Commission v. Wisconsin Right to Life, Inc.
Federal Election Commission v. Wisconsin Right to Life, Inc.
Federal Election Commission v. Wisconsin Right to Life, Inc., 551 U.S. 449 , was a case in which the Supreme Court of the United States held that issue ads may not be banned from the months preceding a primary or general election.-Background:...
(2007). The Court did uphold requirements for disclaimer and disclosure by sponsors of advertisements. The case did not involve the federal ban on direct contributions from corporations or unions to candidate campaigns or political parties, which remain illegal in races for federal office.
Background
The Bipartisan Campaign Reform Act of 2002 (BCRA) (McCain–Feingold Act), , prohibited corporations and unions from using their general treasury funds to make "electioneering communications" (broadcast ads mentioning a candidate) within 30 days of a primary or 60 days of a general election. During the 2004 presidential campaign, Citizens UnitedCitizens United
Citizens United is a conservative non-profit organization in the United States. Its president and chairman is David Bossie.-Overview:Citizens United describes its mission as being dedicated to restoring the United States government to "citizens' control" and to "assert American values of limited...
, a conservative nonprofit 501(c)(4) organization, filed a complaint before the Federal Election Commission
Federal Election Commission
The Federal Election Commission is an independent regulatory agency that was founded in 1975 by the United States Congress to regulate the campaign finance legislation in the United States. It was created in a provision of the 1975 amendment to the Federal Election Campaign Act...
(FEC) charging that ads for Michael Moore's
Michael Moore
Michael Francis Moore is an American filmmaker, author, social critic and activist. He is the director and producer of Fahrenheit 9/11, which is the highest-grossing documentary of all time. His films Bowling for Columbine and Sicko also place in the top ten highest-grossing documentaries...
film Fahrenheit 9/11
Fahrenheit 9/11
Fahrenheit 9/11 is a 2004 documentary film by American filmmaker and political commentator Michael Moore. The film takes a critical look at the presidency of George W. Bush, the War on Terror, and its coverage in the news media...
, which was critical of the Bush administration's
George W. Bush
George Walker Bush is an American politician who served as the 43rd President of the United States, from 2001 to 2009. Before that, he was the 46th Governor of Texas, having served from 1995 to 2000....
response to the terrorist attacks on September 11, 2001, constituted political advertising and thus could not be aired 60 days before an election or 30 days before a party convention. On August 5, the FEC dismissed the complaint finding no evidence that the movie's ads had broken the law. The FEC dismissed a further complaint filed in 2005, holding:
In the wake of these decisions allowing the promotion of the documentary Fahrenheit 9/11
Fahrenheit 9/11
Fahrenheit 9/11 is a 2004 documentary film by American filmmaker and political commentator Michael Moore. The film takes a critical look at the presidency of George W. Bush, the War on Terror, and its coverage in the news media...
during the 2004 campaign, Citizens United
Citizens United
Citizens United is a conservative non-profit organization in the United States. Its president and chairman is David Bossie.-Overview:Citizens United describes its mission as being dedicated to restoring the United States government to "citizens' control" and to "assert American values of limited...
sought to run television commercials during the 2008 campaign promoting its political documentary Hillary: The Movie
Hillary: The Movie
Hillary: The Movie is a 2008 politicized documentary about United States Senator and Presidential candidate Hillary Clinton. It was produced by Citizens United. The film was scheduled to be offered as video-on-demand on cable TV right before the Democratic primaries in January 2008, but the federal...
, which is critical of then-Senator Hillary Clinton, and to air the movie on DirecTV. In January 2008, the United States District Court for the District of Columbia
United States District Court for the District of Columbia
The United States District Court for the District of Columbia is a federal district court. Appeals from the District are taken to the United States Court of Appeals for the District of Columbia Circuit The United States District Court for the District of Columbia (in case citations, D.D.C.) is a...
ruled that the commercials violated provisions in the Bipartisan Campaign Reform Act of 2002 (McCain–Feingold) restricting "electioneering communications" 30 days before primaries. Though the political action committee claimed that its film was fact-based and nonpartisan, the lower Court found that the film had no purpose other than to discredit Clinton's candidacy for President.
The Supreme Court docketed the case on August 18, 2008, and heard oral argument on March 24, 2009. In the course of the original oral argument, then-Deputy Solicitor General Malcolm L. Stewart, representing the FEC, argued that under the Austin decision, the government would have the power to ban books, if those books contained even one sentence expressly advocating the election or defeat of a candidate, and were published or distributed by a corporation or union. Under questioning from the Court, Stewart further argued that under "Austin" the government could ban the distribution of political books over Amazon's Kindle, or prevent a union from hiring a writer to author a political book.
On June 29, 2009, the Supreme Court issued an order directing the parties to reargue the case on September 9 after briefing whether it might be necessary to overrule Austin v. Michigan Chamber of Commerce and/or McConnell v. Federal Election Commission to decide the case. Justice Stevens noted in his dissent that in its prior motion for summary judgment Citizens United had abandoned its facial challenge to Section 203, with the parties agreeing to the dismissal of the claim. Stevens argued that the Court chose to hear argument on issues the parties had agreed were not to be presented to the Court and that it reached a decision on constitutionality when it could have found for the plaintiffs on narrower grounds.
The case, on reargument, was the first to be heard by Justice Sotomayor
Sonia Sotomayor
Sonia Maria Sotomayor is an Associate Justice of the Supreme Court of the United States, serving since August 2009. Sotomayor is the Court's 111th justice, its first Hispanic justice, and its third female justice....
and the first case to be argued in the Supreme Court by Solicitor General Elena Kagan
Elena Kagan
Elena Kagan is an Associate Justice of the Supreme Court of the United States, serving since August 7, 2010. Kagan is the Court's 112th justice and fourth female justice....
. Also arguing before the Court were former Bush solicitor general Ted Olson and First Amendment lawyer Floyd Abrams
Floyd Abrams
Floyd Abrams is an American attorney at Cahill Gordon & Reindel. He is an expert on constitutional law, and many arguments in the briefs he has written before the United States Supreme Court have been adopted as United States Constitutional interpretative law as it relates to the First Amendment...
for Citizens United, and former Clinton solicitor general Seth Waxman defending the statute on behalf of various intervenors that supported the law. Legal scholar Erwin Chemerinsky
Erwin Chemerinsky
Erwin Chemerinsky is an American lawyer and law professor. He is a prominent scholar in United States constitutional law and federal civil procedure...
called it "one of the most important First Amendment cases in years".
Opinion of the Court
Anthony Kennedy
Anthony McLeod Kennedy is an Associate Justice of the United States Supreme Court, having been appointed by President Ronald Reagan in 1988. Since the retirement of Sandra Day O'Connor, Kennedy has often been the swing vote on many of the Court's politically charged 5–4 decisions...
, found that prohibition of all independent expenditures by corporations and unions was invalid and could not be applied to spending such as that in Hillary: The Movie. 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." He also noted that since there was no way to distinguish between media and other corporations, these restrictions would allow Congress to suppress political speech in newspapers, books, television and blogs. The Court overruled Austin v. Michigan Chamber of Commerce
Austin v. Michigan Chamber of Commerce
Austin v. Michigan Chamber of Commerce, 494 U.S. 652 , was a case in which the Supreme Court of the United States held that the Michigan Campaign Finance Act, which prohibited corporations from using treasury money to support or oppose candidates in elections, did not violate the First and...
, which had previously held that a Michigan campaign finance act that prohibited corporations from using treasury money to support or oppose candidates in elections did not violate the First and Fourteenth Amendments. The Court also overruled the part of McConnell v. Federal Election Commission
McConnell v. Federal Election Commission
McConnell v. Federal Election Commission, 540 U.S. 93 , is a case in which the United States Supreme Court upheld the constitutionality of most of the Bipartisan Campaign Reform Act of 2002 , often referred to as the McCain–Feingold Act....
that upheld BCRA's extension of the Federal Election Campaign Act's restrictions on independent corporate expenditures to include "electioneering communications".
The Court found that BCRA §§201 and 311 (provisions requiring disclosure of the funder) were valid as applied to the ads for Clinton and to the movie itself.
Concurrences
Chief Justice Roberts, with whom Justice Alito joined, wrote separately "to address the important principles of judicial restraint and stare decisisStare decisis
Stare decisis is a legal principle by which judges are obliged to respect the precedents established by prior decisions...
implicated in this case".
Chief Justice Roberts wrote to further explicate and defend the court's statement that "there is a difference between judicial restraint and judicial abdication". The Chief Justice argued that there are times during which overruling prior decisions is necessary. Had the courts never gone against stare decisis, "segregation would be legal, minimum wage laws would be unconstitutional, and the Government could wiretap ordinary criminal suspects without first obtaining warrants". Roberts' concurrence recited a plethora of case law in which the court had ruled against jurisprudence. Ultimately, however, Roberts argued, "Stare decisis is a doctrine of preservation, not transformation. It counsels deference to past mistakes, but provides no justification for making new ones."
Justice Scalia joined the opinion of the Court, but also wrote a concurring opinion which was joined by Justice Alito in full and by Justice Thomas
Clarence Thomas
Clarence Thomas is an Associate Justice of the Supreme Court of the United States. Succeeding Thurgood Marshall, Thomas is the second African American to serve on the Court....
in part. Scalia addressed Justice Stevens's dissent, specifically with regard to the notion that the court's decision was not supported by the original understanding of the First Amendment. Scalia stated that Stevens dissent was "in splendid isolation from the text of the First Amendment. It never shows why 'the freedom of speech' that was the right of Englishmen did not include the freedom to speak in association with other individuals, including association in the corporate form." He further considered the dissent’s exploration of the Framers’ views about the "role of corporations in society" to be misleading, and even if valid, irrelevant to the text. Scalia principally argued that the first amendment was written in "terms of speech, not speakers" and that "Its text offers no foothold for excluding any category of speaker."
Dissents
Justice Thomas
Clarence Thomas
Clarence Thomas is an Associate Justice of the Supreme Court of the United States. Succeeding Thurgood Marshall, Thomas is the second African American to serve on the Court....
wrote a separate opinion concurring in all but part IV of the Court's decision (upholding the disclosure provisions). In order to protect the anonymity of contributors to organizations exercising free speech, Thomas would have struck down the reporting requirements of BCRA §201 and §311 as well, rather than allowing them to be challenged only on a case-specific basis. Thomas's primary argument was that anonymous free speech is protected and that making contributor lists public makes the contributors vulnerable to retaliation, citing instances of retaliation against contributors to both sides of a then recent California voter initiative. Thomas also expressed concern that such retaliation could extend to retaliation by elected officials. Thomas did not consider "as-applied challenges" to be sufficient to protect against the threat of retaliation.
Subsequent developments
There was a wide range of reactions to Citizens UnitedCitizens United
Citizens United is a conservative non-profit organization in the United States. Its president and chairman is David Bossie.-Overview:Citizens United describes its mission as being dedicated to restoring the United States government to "citizens' control" and to "assert American values of limited...
v. FEC from politicians, academics, attorneys, advocacy groups and journalists.
Politicians
Senate Republican leader Mitch McConnellMitch McConnell
Addison Mitchell "Mitch" McConnell, Jr. is the senior United States Senator from Kentucky and the Republican Minority Leader.- Early life, education, and military service :...
, who attended the announcement of the ruling, said the court "struck a blow for the First Amendment".
Republican campaign consultant Ed Rollins
Ed Rollins
Edward John "Ed" Rollins is a Republican campaign consultant and advisor who has worked on several high-profile political campaigns in the United States. In 1983-84, he was National Campaign Director for the Reagan-Bush '84 campaign, winning 49 of 50 states...
opined that the decision adds transparency to the election process and will make it more competitive.
Advocacy groups
Citizens UnitedCitizens United
Citizens United is a conservative non-profit organization in the United States. Its president and chairman is David Bossie.-Overview:Citizens United describes its mission as being dedicated to restoring the United States government to "citizens' control" and to "assert American values of limited...
, the group filing the lawsuit said, "Today's U.S. Supreme Court decision allowing Citizens United to air its documentary films and advertisements is a tremendous victory, not only for Citizens United but for every American who desires to participate in the political process." During litigation, Citizens United
Citizens United
Citizens United is a conservative non-profit organization in the United States. Its president and chairman is David Bossie.-Overview:Citizens United describes its mission as being dedicated to restoring the United States government to "citizens' control" and to "assert American values of limited...
had support from the United States Chamber of Commerce
United States Chamber of Commerce
The United States Chamber of Commerce is an American lobbying group representing the interests of many businesses and trade associations. It is not an agency of the United States government....
and the National Rifle Association
National Rifle Association
The National Rifle Association of America is an American non-profit 501 civil rights organization which advocates for the protection of the Second Amendment of the United States Bill of Rights and the promotion of firearm ownership rights as well as marksmanship, firearm safety, and the protection...
.
Campaign finance attorney Cleta Mitchell, who had filed an amicus curiae
Amicus curiae
An amicus curiae is someone, not a party to a case, who volunteers to offer information to assist a court in deciding a matter before it...
brief on behalf of two advocacy organizations opposing the ban, wrote that "The Supreme Court has correctly eliminated a constitutionally flawed system that allowed media corporations (e.g., The Washington Post Co.) to freely disseminate their opinions about candidates using corporate treasury funds, while denying that constitutional privilege to Susie's Flower Shop Inc. ... The real victims of the corporate expenditure ban have been nonprofit advocacy organizations across the political spectrum."
Heritage Foundation
Heritage Foundation
The Heritage Foundation is a conservative American think tank based in Washington, D.C. Heritage's stated mission is to "formulate and promote conservative public policies based on the principles of free enterprise, limited government, individual freedom, traditional American values, and a strong...
fellow Hans A. von Spakovsky
Hans A. von Spakovsky
Hans A. von Spakovsky is an American attorney and a former member of the Federal Election Commission . He was nominated to the FEC by President George W...
, a former Republican member of the Federal Election Commission, said "The Supreme Court has restored a part of the First Amendment that had been unfortunately stolen by Congress and a previously wrongly-decided ruling of the court."
Libertarian Cato Institute
Cato Institute
The Cato Institute is a libertarian think tank headquartered in Washington, D.C. It was founded in 1977 by Edward H. Crane, who remains president and CEO, and Charles Koch, chairman of the board and chief executive officer of the conglomerate Koch Industries, Inc., the largest privately held...
analysts John Samples and Ilya Shapiro wrote that restrictions on advertising were based on the idea “that corporations had so much money that their spending would create vast inequalities in speech that would undermine democracy.” However, “to make campaign spending equal or nearly so, the government would have to force some people or groups to spend less than they wished. And equality of speech is inherently contrary to protecting speech from government restraint, which is ultimately the heart of American conceptions of free speech.”
The American Civil Liberties Union
American Civil Liberties Union
The American Civil Liberties Union is a U.S. non-profit organization whose stated mission is "to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States." It works through litigation, legislation, and...
filed an amicus brief that supported the decision, saying that "section 203 should now be struck down as facially unconstitutional", though membership was split over the implications of the ruling and its board sent the issue to its special committee on campaign finance for further consideration.
Academics and attorneys
Professor of Law Bradley A. SmithBradley A. Smith
Bradley A. Smith is a professor at Capital University Law School, who was Commissioner, Vice Chairman and Chairman of the Federal Election Commission between 2000 and 2005 and is best known for his writing and activities opposing campaign finance regulation.-Academic career and influence:A...
, former chairman of the FEC, founder of the Center for Competitive Politics
Center for Competitive Politics
The Center for Competitive Politics is a Section 501 non-profit organization headquartered in Alexandria, Virginia. The CCP's mission statement is "through legal briefs, studies, historical and constitutional analyses, and media communication, to educate the public on the actual effects of money...
and a leading proponent of deregulation of campaign finance, wrote that the major opponents of political free speech are "incumbent politicians" who "are keen to maintain a chokehold on such speech". Empowering "small and midsize corporations—and every incorporated mom-and-pop falafel joint, local firefighters’ union, and environmental group—to make its voice heard" frightens them. In response to statements by President Obama and others that the ruling would allow foreign entities to gain political influence through U.S. subsidiaries, Smith pointed out that the decision did not overturn the ban on political donations by foreign corporations and the prohibition on any involvement by foreign nationals in decisions regarding political spending by U.S. subsidiaries, which are covered by other parts of the law.
Campaign finance expert Jan Baran, a member of the Commission on Federal Ethics Law Reform
Commission on Federal Ethics Law Reform
Commission on Federal Ethics Law Reform was a commission established by executive order by President George H. W. Bush to review federal ethics laws, executive orders, and policies and to make recommendations to the president for legislative, administrative, and other reforms needed to ensure full...
, agreed with the decision, writing that "The history of campaign finance reform is the history of incumbent politicians seeking to muzzle speakers, any speakers, particularly those who might publicly criticize them and their legislation. It is a lot easier to legislate against unions, gun owners, 'fat cat' bankers, health insurance companies and any other industry or 'special interest' group when they can't talk back." Baran further noted that in general conservatives and libertarians praised the ruling's preservation of the First Amendment and freedom of speech, but that liberals
Liberalism in the United States
Liberalism in the United States is a broad political philosophy centered on the unalienable rights of the individual. The fundamental liberal ideals of freedom of speech, freedom of the press, freedom of religion for all belief systems, and the separation of church and state, right to due process...
and campaign finance reformers criticized it as greatly expanding the role of corporate money in politics.
Attorney Kenneth Gross, former associate general counsel of the FEC, wrote that corporations relied more on the development of long-term relationships, political action committees and personal contributions, which were not affected by the decision. He held that while trade associations might seek to raise funds and support candidates, corporations which have “signed on to transparency agreements regarding political spending” may not be eager to give.
The New York Times asked seven academics to opine on how corporate money would reshape politics as a result of the court's decision. Three of these wrote that the effects would be minimal or positive: Christopher Cotton, a University of Miami
University of Miami
The University of Miami is a private, non-sectarian university founded in 1925 with its main campus in Coral Gables, Florida, a medical campus in Miami city proper at Civic Center, and an oceanographic research facility on Virginia Key., the university currently enrolls 15,629 students in 12...
School of Business assistant professor of economics, wrote that “There may be very little difference between seeing eight ads or seeing nine ads (compared to seeing one ad or two). And, voters recognize that richer candidates are not necessarily the better candidates, and in some cases, the benefit of running more ads is offset by the negative signal that spending a lot of money creates. University of California professor of law Eugene Volokh
Eugene Volokh
Eugene Volokh is an American legal commentator and the Gary T. Schwartz Professor of Law at the UCLA School of Law...
held that the “most influential actors in most political campaigns” are media corporations which “overtly editorialize for and against candidates, and also influence elections by choosing what to cover and how to cover it.” Holding that corporations like Exxon
Exxon
Exxon is a chain of gas stations as well as a brand of motor fuel and related products by ExxonMobil. From 1972 to 1999, Exxon was the corporate name of the company previously known as Standard Oil Company of New Jersey or Jersey Standard....
would fear alienating voters by supporting candidates, the decision really meant that voters would hear “more messages from more sources.” Joel Gora, a professor at Brooklyn Law School
Brooklyn Law School
Brooklyn Law School is a law school located in Brooklyn Heights, in Downtown Brooklyn, New York.-History:Founded in 1901 by William Payson Richardson and Norman P. Heffley, Brooklyn Law School was the first law school on Long Island. Using space provided by Heffley’s business school, the law...
who had previously argued the case of Buckley v. Valeo
Buckley v. Valeo
Buckley v. Valeo, 424 U.S. 1 , was a case in which the Supreme Court of the United States upheld a federal law which set limits on campaign contributions, but ruled that spending money to influence elections is a form of constitutionally protected free speech, and struck down portions of the law...
on behalf of the American Civil Liberties Union
American Civil Liberties Union
The American Civil Liberties Union is a U.S. non-profit organization whose stated mission is "to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States." It works through litigation, legislation, and...
, said that the decision represented "a great day for the First Amendment" writing that the Court had "dismantled the First Amendment 'caste system' in election speech".
Journalists
The Editorial Board of the San Antonio Express-NewsSan Antonio Express-News
The San Antonio Express-News is the daily newspaper of San Antonio, Texas. It is ranked as the third-largest daily newspaper in the state of Texas in terms of circulation, and is one of the leading news sources of South Texas, with offices in Austin, Brownsville, Laredo, and Mexico City...
, criticized McCain–Feingold's exception for media corporations from the ban on corporate electioneering, writing that it “makes no sense” that the paper could make endorsements up until the day of the election but advocacy groups could not. "While the influence of money on the political process is troubling and sometimes corrupting, abridging political speech is the wrong way to counterbalance that influence.”
Anthony Dick in National Review
National Review
National Review is a biweekly magazine founded by the late author William F. Buckley, Jr., in 1955 and based in New York City. It describes itself as "America's most widely read and influential magazine and web site for conservative news, commentary, and opinion."Although the print version of the...
countered a number of arguments against the decision, asking rhetorically, "is there something uniquely harmful and/or unworthy of protection about political messages that come from corporations and unions, as opposed to, say, rich individuals, persuasive writers, or charismatic demagogues?" He noted that "a recent Gallup poll shows that a majority of the public actually agrees with the Court that corporations and unions should be treated just like individuals in terms of their political-expenditure rights". A Gallup poll taken in October 2009 and released soon after the decision showed 57 percent of those surveyed agreed that contributions to political candidates are a form of free speech and 55 percent agreed that the same rules should apply to individuals, corporations and unions. Sixty-four percent of Democrats and Republicans believed campaign donations are a form of free speech.
Chicago Tribune
Chicago Tribune
The Chicago Tribune is a major daily newspaper based in Chicago, Illinois, and the flagship publication of the Tribune Company. Formerly self-styled as the "World's Greatest Newspaper" , it remains the most read daily newspaper of the Chicago metropolitan area and the Great Lakes region and is...
editorial board member Steve Chapman
Steve Chapman
Professor Stephen Kenneth Chapman FRSE FRSC CChem PhD is Principal and Vice-Chancellor of Heriot-Watt University, Edinburgh.-Early life:...
wrote "If corporate advocacy may be forbidden as it was under the law in question, it's not just Exxon Mobil and Citigroup that are rendered mute. Nonprofit corporations set up merely to advance goals shared by citizens, such as the American Civil Liberties Union and the National Rifle Association, also have to put a sock in it. So much for the First Amendment goal of fostering debate about public policy."
American politicians
President Barack ObamaBarack Obama
Barack Hussein Obama II is the 44th and current President of the United States. He is the first African American to hold the office. Obama previously served as a United States Senator from Illinois, from January 2005 until he resigned following his victory in the 2008 presidential election.Born in...
stated that the decision "gives the special interests and their lobbyists even more power in Washington — while undermining the influence of average Americans who make small contributions to support their preferred candidates". Obama later elaborated in his weekly radio address saying, "this ruling strikes at our democracy itself" and "I can't think of anything more devastating to the public interest". On January 27, 2010, Obama further condemned the decision during the 2010 State of the Union Address
2010 State of the Union Address
The 2010 State of the Union Address was given by United States President Barack Obama on January 27, 2010, to a joint session of Congress. It was aired on all the major networks starting at 9 p.m. ET...
, stating that, "Last week, the Supreme Court reversed a century of law to open the floodgates for special interests — including foreign corporations — to spend without limit in our elections. Well I don't think American elections should be bankrolled by America's most powerful interests, or worse, by foreign entities."
Democratic senator Russ Feingold
Russ Feingold
Russell Dana "Russ" Feingold is an American politician from the U.S. state of Wisconsin. He served as a Democratic party member of the U.S. Senate from 1993 to 2011. From 1983 to 1993, Feingold was a Wisconsin State Senator representing the 27th District.He is a recipient of the John F...
, a lead sponsor of the 2002 Bipartisan Campaign Reform Act
Bipartisan Campaign Reform Act
The Bipartisan Campaign Reform Act of 2002 is a United States federal law that amended the Federal Election Campaign Act of 1971, which regulates the financing of political campaigns. Its chief sponsors were Senators Russell Feingold and John McCain...
, stated "This decision was a terrible mistake. Presented with a relatively narrow legal issue, the Supreme Court chose to roll back laws that have limited the role of corporate money in federal elections since Teddy Roosevelt was president." Representative Alan Grayson
Alan Grayson
Alan Mark Grayson is a former U.S. Representative for , serving from 2009 until 2011. He is a member of the Democratic Party and loves cookies. After losing the election he moved to Austin to start stand-up comedy and a cookie business. The district Grayson represented lies in central Florida...
, a Democrat, stated that it was "the worst Supreme Court decision since the Dred Scott case, and that the court had opened the door to political bribery and corruption in elections to come. Democratic congresswoman Donna Edwards
Donna Edwards
Donna F. Edwards is the U.S. Representative for , serving since a special election in 2008. She is a member of the Democratic Party...
, along with constitutional law professor and Maryland Democratic State Senator Jamie Raskin
Jamie Raskin
Jamie Raskin is an American law professor and politician. He teaches at American University, Washington College of Law, in Washington, D.C. He serves as the Director of the college's LL.M. program on Law and Government...
, have advocated petitions to reverse the decision by means of constitutional amendment. Rep. Leonard Boswell
Leonard Boswell
Leonard L. Boswell is the U.S. Representative for , serving since 1997. He is a member of the Democratic Party.The district is based in Des Moines.-Early life, education and career:...
introduced legislation to amend the constitution. Senator John Kerry
John Kerry
John Forbes Kerry is the senior United States Senator from Massachusetts, the 10th most senior U.S. Senator and chairman of the Senate Foreign Relations Committee. He was the presidential nominee of the Democratic Party in the 2004 presidential election, but lost to former President George W...
also called for an Amendment to overrule the decision.
Republican Senator John McCain
John McCain
John Sidney McCain III is the senior United States Senator from Arizona. He was the Republican nominee for president in the 2008 United States election....
, co-crafter of the 2002 Bipartisan Campaign Reform Act
Bipartisan Campaign Reform Act
The Bipartisan Campaign Reform Act of 2002 is a United States federal law that amended the Federal Election Campaign Act of 1971, which regulates the financing of political campaigns. Its chief sponsors were Senators Russell Feingold and John McCain...
and the party's 2008 presidential nominee, said "there's going to be, over time, a backlash ... when you see the amounts of union and corporate money that's going to go into political campaigns". McCain was "disappointed by the decision of the Supreme Court and the lifting of the limits on corporate and union contributions" but not surprised by the decision, saying that "It was clear that Justice Roberts, Alito and Scalia, by their very skeptical and even sarcastic comments, were very much opposed to BCRA." He pointed out that "Justice Rehnquist and Justice O'Connor, who had taken a different position on this issue, both had significant political experience, while Justices Roberts, Alito and Scalia have none." (In fact, Rehnquist had joined Justices Scalia, Thomas, and Kennedy in dissenting in McConnell v. FEC). Republican Senator Olympia Snowe
Olympia Snowe
Olympia Jean Snowe , née Bouchles, is the senior United States Senator from Maine and a member of the Republican Party. Snowe has become widely known for her ability to influence the outcome of close votes, including whether to end filibusters. She and her fellow Senator from Maine, Susan Collins,...
opined that "Today's decision was a serious disservice to our country."
Sanda Everette, co-chair of the Green Party, stated that "The ruling especially hurts the ability of parties that don't accept corporate contributions, like the Green Party, to compete." (In fact, 2 U.S.C. 441i, which was not altered by the decision in Citizens United, prohibits all parties from accepting corporate contributions). Another Green Party officer, Rich Whitney
Rich Whitney
Rich Whitney is an Illinois politician and civil rights attorney who was the Illinois Green Party's nominee for Governor of Illinois in the elections of 2006 and 2010. During the 2006 campaign Whitney received endorsements from several newspapers, including the Rockford Register Star, Southwest...
, stated "In a transparently political decision, a majority of the US Supreme Court overturned its own recent precedent and paid tribute to the giant corporate interests that already wield tremendous power over our political process and political speech."
Ralph Nader
Ralph Nader
Ralph Nader is an American political activist, as well as an author, lecturer, and attorney. Areas of particular concern to Nader include consumer protection, humanitarianism, environmentalism, and democratic government....
, a lawyer who placed third in the popular vote in the last three presidential elections, condemned the ruling, saying that "With this decision, corporations can now directly pour vast amounts of corporate money, through independent expenditures, into the electoral swamp already flooded with corporate campaign PAC contribution dollars." He called for shareholder resolutions asking company directors to pledge not to use company money to favor or oppose electoral candidates. Pat Choate
Pat Choate
Patrick Choate is an American economist who is perhaps most known for being the 1996 Reform Party Vice President candidate, the running-mate of H. Ross Perot...
, Reform Party
Reform Party of the United States of America
The Reform Party of the United States of America is a political party in the United States, founded in 1995 by Ross Perot...
candidate stated, "The court has, in effect, legalized foreign governments and foreign corporations to participate in our electoral politics."
International
Ambassador Janez LenarčičJanez Lenarčič
Janez Lenarčič is a Slovenian diplomat and the current Director of the OSCE Office for Democratic Institutions and Human Rights.He began his diplomatic career in 1992 with the Foreign Ministry...
, speaking for the Organization for Security and Co-operation in Europe
Organization for Security and Co-operation in Europe
The Organization for Security and Co-operation in Europe is the world's largest security-oriented intergovernmental organization. Its mandate includes issues such as arms control, human rights, freedom of the press and fair elections...
's election body
Office for Democratic Institutions and Human Rights
The Office for Democratic Institutions and Human Rights is the principal institution of the Organization for Security and Cooperation in Europe dealing with the "human dimension" of security. The office, originally named Office for Free Elections, was created in 1990 by the Charter of Paris and...
, which has overseen over 150 elections, stated that the ruling may adversely affect the organization's two commitments of "giving voters a genuine choice and giving candidates a fair chance" in that "it threatens to further marginalize candidates without strong financial backing or extensive personal resources, thereby in effect narrowing the political arena".
Academics and attorneys
The constitutional law scholar Laurence H. Tribe wrote that the decision "marks a major upheaval in First Amendment law and signals the end of whatever legitimate claim could otherwise have been made by the Roberts Court to an incremental and minimalist approach to constitutional adjudication, to a modest view of the judicial role vis-à-vis the political branches, or to a genuine concern with adherence to precedent" and pointed out that "Talking about a business corporation as merely another way that individuals might choose to organize their association with one another to pursue their common expressive aims is worse than unrealistic; it obscures the very real injustice and distortion entailed in the phenomenon of some people using other people’s money to support candidates they have made no decision to support, or to oppose candidates they have made no decision to oppose."Former supreme court Justice Sandra Day O’Connor criticized the decision only obliquely, but warned that “In invalidating some of the existing checks on campaign spending, the majority in Citizens United has signaled that the problem of campaign contributions in judicial elections might get considerably worse and quite soon.”
Richard L. Hasen
Richard L. Hasen
Richard L. Hasen is the William H. Hannon Distinguished Professor of Law at Loyola Law School in Los Angeles, California, United States. Hasen's area of expertise is in election law and campaign finance regulation.-Career:...
, professor of election law
Election law
Election law is a discipline falling at the juncture of constitutional law and political science. It researches "the politics of law and the law of politics"...
at Loyola Law School
Loyola Law School
Loyola Law School is the law school of Loyola Marymount University, a private Catholic university in the Jesuit and Marymount traditions, in Los Angeles, California. Loyola was established in 1920. Like Loyola University Chicago School of Law and Loyola University New Orleans College of Law , it...
, argued that the ruling "is activist, it increases the dangers of corruption in our political system and it ignores the strong tradition of American political equality". He also described Justice Kennedy's "specter of blog censorship" as sounding more like "the rantings of a right-wing talk show host than the rational view of a justice with a sense of political realism".
Three other scholars writing in the aforementioned New York Times article were critical. Heather K. Gerken, Professor of Law at Yale Law School
Yale Law School
Yale Law School, or YLS, is the law school of Yale University in New Haven, Connecticut, United States. Established in 1824, it offers the J.D., LL.M., J.S.D. and M.S.L. degrees in law. It also hosts visiting scholars, visiting researchers and a number of legal research centers...
wrote that "The court has done real damage to the cause of reform, but that damage mostly came earlier, with decisions that made less of a splash." Michael Waldman
Michael Waldman
Michael Waldman is executive director of the Brennan Center for Justice at NYU School of Law, a nonpartisan law and policy institute that focuses on fundamental issues of democracy and justice. The Center is one of the nation’s leading legal voices on election law, Constitutional law, government...
, director of the Brennan Center for Justice
Brennan Center for Justice
The Brennan Center for Justice at New York University Law School is a non-partisan public policy and law institute that focuses on issues involving democracy and justice...
at N.Y.U. School of Law, opined that the decision "matches or exceeds Bush v. Gore
Bush v. Gore
Bush v. Gore, , is the landmark United States Supreme Court decision on December 12, 2000, that effectively resolved the 2000 presidential election in favor of George W. Bush. Only eight days earlier, the United States Supreme Court had unanimously decided the closely related case of Bush v...
in ideological or partisan overreaching by the court" and Fred Wertheimer
Fred Wertheimer
Fredric Michael "Fred" Wertheimer is an American activist notable for his work on campaign finance reform. He served as president of Common Cause and is currently the President and CEO of Democracy 21 and Democracy 21 Education Fund, which he founded in 1997.He has received honorary Doctorates...
, founder and president of Democracy 21
Democracy 21
Democracy 21 is a non-profit organization in the United States that works to remove the influence of private money from politics . It was founded in 1997 by longtime activist Fred Wertheimer, and is based in Washington, DC...
considered it "a disaster for the American people".
Subsequent research by John Coates, Professor of Law at Harvard Law School
Harvard Law School
Harvard Law School is one of the professional graduate schools of Harvard University. Located in Cambridge, Massachusetts, it is the oldest continually-operating law school in the United States and is home to the largest academic law library in the world. The school is routinely ranked by the U.S...
, has shown that corporations with weaker, less shareholder-friendly corporate governance have been more likely to engage in corporate political activity, and spend more when they do.
Professors Lucian Bebchuk at Harvard Law School
Harvard Law School
Harvard Law School is one of the professional graduate schools of Harvard University. Located in Cambridge, Massachusetts, it is the oldest continually-operating law school in the United States and is home to the largest academic law library in the world. The school is routinely ranked by the U.S...
and Richard Squire at Columbia Law School
Columbia Law School
Columbia Law School, founded in 1858, is one of the oldest and most prestigious law schools in the United States. A member of the Ivy League, Columbia Law School is one of the professional graduate schools of Columbia University in New York City. It offers the J.D., LL.M., and J.S.D. degrees in...
argue that the interests of directors and executives may significantly diverge from those of shareholders with respect to political speech decisions, that these decisions may carry special expressive significance from shareholders, and that as a result of the Citizens United decision, new laws providing shareholders with a greater role in determining how corporate money is spent on political activity would be beneficial to shareholders.
Advocacy groups
A year after the decision, the liberal advocacy group Common CauseCommon Cause
Common Cause is a self-described nonpartisan, nonprofit lobby and advocacy organization. It was founded in 1970 by John W. Gardner, a Republican former cabinet secretary under Lyndon Johnson, as a "citizens' lobby" with a mission focused on making U.S. political institutions more open and...
asked the Department of Justice
United States Department of Justice
The United States Department of Justice , is the United States federal executive department responsible for the enforcement of the law and administration of justice, equivalent to the justice or interior ministries of other countries.The Department is led by the Attorney General, who is nominated...
to investigate conflicts of interest on the part of two of the Justices in the majority. The organization said that Thomas's wife was the founder and president of Liberty Central
Liberty Central
Liberty Central is a non-profit conservative political advocacy group founded in 2009 by Virginia Thomas, the wife of U.S. Supreme Court Associate Justice, Clarence Thomas. Virginia Thomas is the President and CEO. Its declared purpose is stated on its website as "America’s Public Square. We...
, a conservative
Conservatism
Conservatism is a political and social philosophy that promotes the maintenance of traditional institutions and supports, at the most, minimal and gradual change in society. Some conservatives seek to preserve things as they are, emphasizing stability and continuity, while others oppose modernism...
political advocacy group that would be empowered to accept corporate contributions to run campaign advertisements, and that Scalia and Thomas had participated in political strategy sessions organized by David H. Koch
David H. Koch
David Hamilton Koch is an American businessman, philanthropist, political activist, and chemical engineer. He is a co-owner and an executive vice president of Koch Industries, a conglomerate that is the second-largest privately held company in the U.S...
and Charles G. Koch
Charles G. Koch
Charles de Ganahl Koch is co-owner, chairman of the board and chief executive officer of Koch Industries Inc., the second-largest privately held company by revenue in the United States according to a 2010 Forbes survey...
, who stood to "benefit from the decision" by taking advantage of the rights upheld by the Court.
"Move to Amend", a national coalition of hundreds of organizations and over 113,000 individuals was formed in response to the ruling. It is seeking legislation or amendment that would restrict corporations and corporate interest groups from excessive influence in elections and lawmaking. A primary objective is to abolish corporate personhood and to hold corporations accountable to the public. The organization has local chapters in many states and sponsors public awareness activities.
Journalists
The New York Times stated in an editorial, "The Supreme Court has handed lobbyists a new weapon. A lobbyist can now tell any elected official: if you vote wrong, my company, labor union or interest group will spend unlimited sums explicitly advertising against your re-election." Jonathan AlterJonathan Alter
Jonathan Alter is an American journalist and author who was a columnist and senior editor for Newsweek magazine from 1983 until 2011. He is currently a lead columnist for Bloomberg View, a new commentary website. He is also a contributing correspondent to NBC News, where since 1996 he has appeared...
called it the "most serious threat to American democracy in a generation". The Christian Science Monitor wrote that the Court had declared “outright that corporate expenditures cannot corrupt elected officials, that influence over lawmakers is not corruption, and that appearance of influence will not undermine public faith in our democracy.”
Some journalists and politicians reacted strongly to the decision. An online media journal Veterans Today called for the "immediate arrest" of the justices voting in the majority for treason. Keith Olbermann
Keith Olbermann
Keith Theodore Olbermann is an American political commentator and writer. He has been the chief news officer of the Current TV network and the host of Current TV's weeknight political commentary program, Countdown with Keith Olbermann, since June 20, 2011...
of MSNBC
MSNBC
MSNBC is a cable news channel based in the United States available in the US, Germany , South Africa, the Middle East and Canada...
said that with this decision "within ten years every politician in this country will be a prostitute" and compared it unfavorably to Dred Scott v. Sandford
Dred Scott v. Sandford
Dred Scott v. Sandford, , also known as the Dred Scott Decision, was a ruling by the U.S. Supreme Court that people of African descent brought into the United States and held as slaves were not protected by the Constitution and could never be U.S...
, an 1857 case that held that African-Americans could not be citizens.
Political blogs
Most blogs avoided the theoretical aspects of the decision and focused on more personal and dramatic elements, including the Barack ObamaBarack Obama
Barack Hussein Obama II is the 44th and current President of the United States. He is the first African American to hold the office. Obama previously served as a United States Senator from Illinois, from January 2005 until he resigned following his victory in the 2008 presidential election.Born in...
-Samuel Alito
Samuel Alito
Samuel Anthony Alito, Jr. is an Associate Justice of the U.S. Supreme Court. He was nominated by President George W. Bush and has served on the court since January 31, 2006....
face-off during the President's State of the Union address. There, President Obama argued that the decision "reversed a century of law" (strictly, the federal ban on corporate and union expenditures dates from 1947) and that it would allow "foreign corporations to spend without limits in our elections," during which Justice Alito, in the audience, perceivably mouthed the words “not true.” This event was extensively commented by most political bloggers, with a big chunk of the coverage concentrated on whether or not foreign corporations would be able to make substantial political contributions in US elections. "In 1910, Congress enacted the Federal Corrupt Practices Act. See 36 Stat. 822. The disclosure requirements of the Federal Corrupt Practices Act were upheld by the Supreme Court in Burroughs v. United States, 54 U.S. 287 (1934), as a Constitutional exercise of Congressional power to prevent corruption in elections: 'The power of Congress to protect the election . . . from corruption being clear, the choice of means to that end presents a question primarily addressed to the judgment of Congress…. Congress reached the conclusion that public disclosure of political contributions, together with the names of contributors and other details, would tend to prevent corrupt use of money to affect elections. The verity of this conclusion reasonably cannot be denied.'" Citizens United clearly impugned a century of jurisprudence that affirmed the constitutionality of legislative checks and oversight of election financing, i.e. the power of congress to regulate and protect the electoral process.
Election law blogs
On specialized blogs, the Citizens United v. FEC ruling increased traffic by about tenfold for a few days. Traffic also change in quality terms; a disproportionately large and diverse set of websites linked to their posts about the ruling, when compared to other topics addressed by these specialized blogs.Opinion polls
An ABC-Washington Post poll conducted February 4 to 8, 2010, showed that 80% of those surveyed opposed (and 65% strongly opposed) the Citizens United ruling which the poll described as saying "corporations and unions can spend as much money as they want to help political candidates win elections". Additionally, 72% supported "an effort by Congress to reinstate limits on corporate and union spending on election campaigns".A Gallup Poll conducted in October 2009, after oral argument, but released after the Supreme Court released its opinion, found that 57 percent of those surveyed “agreed that money given to political candidates is a form of free speech” and 55 percent agreed that the “same rules should apply to individuals, corporations and unions.” However, in the same poll respondents by 52% to 41% prioritized limits on campaign contributions over protecting rights to support campaigns and 76% thought the government should be able to place limits on corporation or union donations.
Separate polls by various conservative organizations, including the plaintiff, Citizens United
Citizens United
Citizens United is a conservative non-profit organization in the United States. Its president and chairman is David Bossie.-Overview:Citizens United describes its mission as being dedicated to restoring the United States government to "citizens' control" and to "assert American values of limited...
, and the Center for Competitive Politics
Center for Competitive Politics
The Center for Competitive Politics is a Section 501 non-profit organization headquartered in Alexandria, Virginia. The CCP's mission statement is "through legal briefs, studies, historical and constitutional analyses, and media communication, to educate the public on the actual effects of money...
found support for the decision. In particular, the Center for Competitive Politics poll found that 51% of respondents believed that Citizens United should have a right to air ads promoting Hillary: The Movie, although only 22% of the respondents had heard of the case.
Legislative impact
The New York Times reported that 24 states with laws prohibiting or limiting independent expenditures by unions and corporations would have to change their campaign finance laws because of the ruling.Senator Dick Durbin (D-IL) proposed that candidates who sign up small donors receive $900,000 in public money. Others proposed that laws on corporate governance be amended to assure that shareholders vote on political expenditures.
In February 2010, Senator Charles E. Schumer of New York, immediate past Chairman of the Democratic Senatorial Campaign Committee, and Representative Chris Van Hollen
Chris Van Hollen
Christopher "Chris" Van Hollen, Jr. is the U.S. Representative for , serving since 2003. He is a member of the Democratic Party...
of Maryland, Chairman of the Democratic Congressional Campaign Committee, outlined legislation aimed at undoing the decision. In April 2010, they introduced such legislation in the Senate and House, respectively. On June 24, 2010, H.R.5175 (The DISCLOSE Act
DISCLOSE Act
The Democracy Is Strengthened by Casting Light On Spending in Elections Act, commonly known as the DISCLOSE Act and also known as H.R. 5175 , was a bill introduced in the U.S. House of Representatives by Chris Van Hollen on April 29, 2010 and in the U.S...
) passed in the House of Representatives but failed in the Senate. It would have required additional disclosure by corporations of their campaign expenditures. The law, if passed, would also have prohibited political spending by U.S. companies with twenty percent or more foreign ownership, and by most government contractors.
The DISCLOSE Act included exemptions to its rules given to certain special interests such as the National Rifle Association
National Rifle Association
The National Rifle Association of America is an American non-profit 501 civil rights organization which advocates for the protection of the Second Amendment of the United States Bill of Rights and the promotion of firearm ownership rights as well as marksmanship, firearm safety, and the protection...
and the American Association of Retired Persons. These gaps within the proposal attracted criticism from lawmakers on both political parties. "They are auctioning off pieces of the First Amendment in this bill... The bigger you are, the stronger you are, the less disclosure you have," said Republican Congressman Dan Lungren of California. Democratic Congressman Adam Schiff of California commented, "I wish there had been no carve-outs".
The DISCLOSE Act twice failed to pass the U.S. Senate in the 111th Congress, in both instances reaching only 59 of the 60 votes required to overcome a unified Republican filibuster.
See also
- Santa Clara County v. Southern Pacific RailroadSanta Clara County v. Southern Pacific RailroadSanta Clara County v. Southern Pacific Railroad Company, was a United States Supreme Court case dealing with taxation of railroad properties...
, 1886 Supreme Court decision mistakenly believed to have held that corporations are protected under the Equal Protection Clause of the 14th Amendment to the Constitution. - Corporate personhood debate
- 2009 term opinions of the Supreme Court of the United States
- David BossieDavid BossieDavid N. Bossie is an American political activist. Since 2000 he has been President and Chairman of conservative advocacy organization Citizens United.-Early life:...
- Murray Hill IncorporatedMurray Hill IncorporatedMurray Hill Inc. is a Maryland-based public relations firm. To protest the Supreme Court's decision in Citizens United v. FEC, Murray Hill Inc. announced plans to file to run in the Republican primary in Maryland's 8th Congressional District...
- W Spann LLCW Spann LLCW Spann LLC was a phantom company created at the behest of an originally unknown person by Boston lawyer Cameron Casey on March 15, 2011, apparently for the sole purpose of anonymously donating one million dollars to Restore Our Future, a Super PAC supporting U.S. Presidential candidate Mitt Romney...
Historical background
- Tillman Act of 1907Tillman Act of 1907The Tillman Act of 1907 was the first legislation in the United States prohibiting monetary contribution to national political campaigns by corporations....
, banned corporations' contributions to political parties or candidates for any federal election campaigns - Taft Hartley Act of 1947, banned expenditures by corporations and unions in connection with general and primary federal elections
- Federal Election Campaign Act of 1971 put $1000 limits on expenditure by people, including candidates for election
- Buckley v. ValeoBuckley v. ValeoBuckley v. Valeo, 424 U.S. 1 , was a case in which the Supreme Court of the United States upheld a federal law which set limits on campaign contributions, but ruled that spending money to influence elections is a form of constitutionally protected free speech, and struck down portions of the law...
, 424 U.S. 1 (1976) struck down limits on political candidates' own personal expenditures as unconstitutional - First National Bank of Boston v. BellottiFirst National Bank of Boston v. BellottiFirst National Bank of Boston v. Bellotti, 435 U.S. 765 , was a case in which the United States Supreme Court ruled 5-4 that corporations had a First Amendment right to make contributions in order to attempt to influence political processes...
, 435 U.S. 765 (1977) struck down a state law which criminalized corporations spending money for advertising their views before a state referendum - Austin v. Michigan Chamber of CommerceAustin v. Michigan Chamber of CommerceAustin v. Michigan Chamber of Commerce, 494 U.S. 652 , was a case in which the Supreme Court of the United States held that the Michigan Campaign Finance Act, which prohibited corporations from using treasury money to support or oppose candidates in elections, did not violate the First and...
, 494 U.S. 652 (1990) upheld a Michigan law that prohibited corporations but not unions from using funds for individual expenditures - Bipartisan Campaign Reform Act of 2002, prohibited "electioneering communication" by corporations unless from a segregated PAC fund
- McConnell v. Federal Election CommissionMcConnell v. Federal Election CommissionMcConnell v. Federal Election Commission, 540 U.S. 93 , is a case in which the United States Supreme Court upheld the constitutionality of most of the Bipartisan Campaign Reform Act of 2002 , often referred to as the McCain–Feingold Act....
, 540 U.S. 93 (2003) upheld regulation of "electioneering communication"