Citizens United, campaign finance, and the First Amendment

The Supreme Court’s decision in Citizens United v. Federal Election Commission (2010) continues to stoke controversy more than 14 years after it was decided. It even got a shout-out in the critically-acclaimed “Barbie” movie. Are corporations people? Is money speech? What’s the First Amendment got to do with this? 

For anyone interested in free speech, election laws, campaign finance, or money in politics, providing accurate answers to these questions is crucial. Let’s dive in.

The Bipartisan Campaign Reform Act and the scope of Citizens United

Let’s begin by noting that there are lots of ways that money is involved in politics, including donations to candidates, political parties, and political action committees (PACS), as well as funds spent on lobbying and issue ads not mentioning a candidate. This is not what Citizens United was about. These common political activities can greatly influence elections and are subject to their own rules, but those rules were not before the Court here. 

The key rule before the court was the Bipartisan Campaign Reform Act, passed in 2002 to address the proliferation of corporate money in federal elections. Like most divas, BCRA is a lot, with a rich backstory of campaign finance rules and corresponding lawsuits, but we’re concerned here only with its ban on corporations spending money on media about political candidates close to an election. Specifically, BCRA banned: 

1. “independent expenditures” (money from the corporate treasury);
2.  on “electioneering communications” (political ads or materials);
3.  featuring “express advocacy” (naming a specific candidate);
4.  within 30 days before a primary election or 60 days before a general election.  

For example, BCRA would have banned a nonprofit corporation from spending money on billboards promoting Donald Trump, the Republican Party nominee, in October before a November 4 general election. 

Let’s also be clear that corporations include not just Fortune 500 companies, but also labor unions, mom-and-pop shops, newspapers, nonprofit organizations, advocacy groups, and a vast array of financial and nonfinancial entities. Everything from the ACLU, the NRA, Tesla, Apple, the New York Times, to even your favorite cafe, bar, restaurant, or gym is likely corporate. Because of the substantial financial benefits incorporation provides, most of America’s most beloved (and hated) organizations are corporations subject to BCRA. 

What is Citizens United?

In the runup to the 2008 Democratic Party primary election between Hillary Clinton and Barack Obama, the conservative nonprofit group Citizens United sought to air “Hillary: The Movie,” a political documentary about Clinton. One review describes it as “boldly negative,” attorney and journalist Dahlia Lithwick called it “virulently anti-Clinton,” and Justice Breyer described it as “not a musical comedy.” (So, it’s got that going for it.) 

Yet BCRA prevented Citizens United from distributing the film in the heat of this campaign because the movie was (1) corporate-funded (2) political material (3) naming a specific candidate (4) within 30 days of a primary election. Cue the federal lawsuit that wound its way up the Supreme Court in 2010.

What did the Court hold?

In a 5-4 decision, the Court struck down BCRA’s ban because it violated the fundamental First Amendment right to engage in political speech. The Court held that people do not lose their speech rights because they decide to form a corporation; that the First Amendment prohibits discriminating against classes of speakers; that the BCRA discriminated against one type of speaker, corporations; and that a restraint on spending for communication is, in fact, a restraint on speech.

At oral argument, the justices made hay of BCRA’s grave potential to censor a wide array of political speech. Anything from books and news articles to billboards and movies could violate the act, even if they contain just a single line naming a candidate. In explaining how BCRA restricts everything from environmental groups supporting pro-green candidates to the NRA condemning politicians pushing gun control, the Court decried these “classic examples of censorship.”

The first pillar of the majority decision is that the First Amendment prohibits the government from discriminating based on a speaker’s identity. The government cannot ban speech merely because speakers are corporations, especially given that they “contribute to the discussion, debate, and the dissemination of information and ideas that the First Amendment seeks to foster.” This bedrock principle supplements the First Amendment’s protection for offensive speech by ensuring diverse and controversial speakers can participate in our democracy.

‘So to Speak’ podcast: Campaign finance and free speech with attorney Sam Gedge

News

From Buckley v. Valeo (1976) to Citizens United v. FEC (2010), legal disputes over the constitutionality of campaign finance laws have captured the public’s attention for decades.

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Corporations are not literally people, of course, but they are made up of people. They are one way that people collectively organize themselves: Labor unions, advocacy groups, nonprofits, newspapers, small businesses — and, yes, other corporations — have free speech rights. This is not exactly a novel concept. For decades before Citizens United, courts have consistently struck down rules squelching corporate speech. The key takeaway is the government cannot say that free speech rights differ based on the form of an entity people have chosen to form. (We do have a vested interest in this outcome — FIRE is a nonprofit corporation that uses its speech rights to speak up for the rights of others.)

The Court explained how a ban on corporate expenditures is “a ban on speech.” This long-established First Amendment principle prevents the government from “repress[ing] speech by silencing certain voices at any of the various points in the speech process.” Unless your advocacy consists entirely of shouting at strangers in the middle of the street, you need money to amplify your words. Pens and pencils, printers and paper, computers and connection to the internet all cost money. Just imagine the potential for censorship if the state could restrict purchasing goods and services to broadcast your message. Any spending limit “necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached.” 

BCRA, like many campaign finance laws, furthers the goal of addressing the appearance of corruption and, according to the government, the “corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas.” But is this interest enough to justify BCRA? 

Why did the Court strike down BCRA?

When a law burdens political speech, courts generally apply strict scrutiny to evaluate whether it is constitutional under the First Amendment, which requires assessing whether it is narrowly tailored to a compelling government interest. In other words, does the law advance its goals without burdening protected speech any more than is necessary?

The First Amendment doesn’t tolerate burdens on core political speech based on mere speculation of potential corruption. 

Much of campaign finance regulation rests on dispelling corruption. If Americans believe their elections are bought and paid for, why vote? Why participate at all? This is why corporate donations to candidates remain largely banned. But this interest becomes too attenuated when it comes to any communication that merely mentions a candidate. And, on a fundamental level: “Favoritism and influence are not . . . avoidable in representative politics. It is in the nature of an elected representative to favor certain policies, and, by necessary corollary, to favor the voters and contributors who support those policies.” Some level of connection between expression and politics, and the responsiveness it creates, is a function of democracy. 

The Court also rejected the notion that the immense wealth of corporations justifies BCRA. Restricting speech in these industries would “muffle the voices that best represent the most significant segments of the economy.” Additionally, this interest doesn’t justify a ban on all corporations, including those without massive wealth, such as small newspapers. Even if the target is wealthy companies, the First Amendment does not tolerate laws censoring media corporations. 

What does Citizen United mean today? 

Because of the decision, corporations can spend to their hearts’ desire on independent expenditures close to an election. There are still restrictions on donations, lobbying, issue ads, fundraisers, endorsements, and tons of other forms of advocacy — contact your friendly neighborhood campaign finance attorney for more information on that. States also have different rules for their elections as BCRA mostly only affects federal elections. 

And if you disagree with the decision, we encourage you to read the dissent, which does an excellent job of breaking down the majority’s rationales. The four dissenting justices decried the corrupting effect of corporations’ ability to “spend unrestricted sums on elections,” claiming this can cause “cynicism and disenchantment” and “an increased perception that large spenders call the tune and a reduced willingness of voters to take part in democratic governance.” However, as the majority pointed out, BCRA doesn’t even affect the most common forms of money in politics, such as donations, lobbying, issues ads, and independent expenditures outside of election season. The First Amendment doesn’t tolerate burdens on core political speech based on mere speculation of potential corruption. 

For more on the decision, its merits, and its impact, see SCOTUSblog for the case materials and a collection of political commentary. 

FIRE defends the rights of students and faculty members — no matter their views — at public and private universities and colleges in the United States. If you are a student or a faculty member facing investigation or punishment for your speech, submit your case to FIRE today. If you’re a faculty member at a public college or university, call the Faculty Legal Defense Fund 24-hour hotline at 254-500-FLDF (3533). If you’re a college journalist facing censorship or a media law question, call the Student Press Freedom Initiative 24-hour hotline at 717-734-SPFI (7734).