Citizens United v. Federal Election Commission
Does the First Amendment permit the government to prohibit corporations and unions from using their general treasury funds to make independent expenditures for speech that expressly advocates the election or defeat of a candidate, or that qualifies as 'electioneering communications' under federal campaign finance law?
The Decision
5-4 decision · Opinion by Anthony M. Kennedy · 2010
Majority Opinion— Anthony M. Kennedyconcurring ↓dissent ↓
In a 5–4 decision authored by Justice Anthony M. Kennedy, the Supreme Court ruled that the First Amendment prohibits the government from restricting independent expenditures for political speech by corporations, labor unions, and other associations. The Court struck down the provisions of BCRA that banned corporate-funded electioneering communications, and in doing so, it overruled two of its own prior decisions: Austin v. Michigan Chamber of Commerce (1990), which had allowed restrictions on corporate independent expenditures, and the portion of McConnell v. FEC (2003) that had upheld BCRA's electioneering communications ban as applied to corporations and unions.
The majority reasoned that political speech is at the core of the First Amendment's protections, and that the identity of the speaker — whether an individual, a corporation, a union, or a nonprofit — does not diminish the value or the constitutional protection of that speech. Justice Kennedy wrote that the government may not suppress political speech based on the speaker's corporate identity, because doing so amounts to an impermissible content- and speaker-based restriction. The majority rejected the argument that corporate wealth could 'distort' the political marketplace, finding that this 'antidistortion' rationale was itself a form of government censorship incompatible with the First Amendment.
The Court also narrowed the permissible government interest in regulating campaign spending. It held that the only legitimate interest justifying restrictions on political expenditures is the prevention of quid pro quo corruption — essentially, outright bribery or its functional equivalent — or the appearance thereof. Independent expenditures, by definition not coordinated with any candidate's campaign, do not pose the same danger of quid pro quo corruption that direct contributions to candidates might. Therefore, the government could not justify banning independent corporate spending on this basis.
Importantly, the Court upheld BCRA's disclosure and disclaimer requirements, which mandate that organizations disclose who funded political advertisements. The majority found that transparency serves a legitimate informational interest, allowing voters to evaluate the message and the messenger. The ruling did not affect limits on direct contributions by corporations to candidates or political parties — only independent expenditures were at issue. The practical effect of the decision was to open the door to unlimited independent spending by corporations, unions, and other groups on political advertising, dramatically altering the landscape of American campaign finance.
Concurring Opinions
Chief Justice John G. Roberts Jr. wrote a concurrence, joined by Justice Samuel A. Alito Jr., defending the majority's decision to overrule prior precedent and arguing that stare decisis does not require the Court to perpetuate a constitutional error. Justice Antonin Scalia also wrote a concurrence, joined in part by Justices Alito and Clarence Thomas, directly rebutting the dissent's historical claims and arguing that the original understanding of the First Amendment encompassed the speech rights of corporations and associations. Justice Thomas wrote separately to express his view that the Court should also have struck down BCRA's disclosure requirements, which he argued could chill political speech by exposing donors to harassment and retaliation.
Dissenting Opinions
John Paul Stevensjoined by Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor
Justice Stevens wrote a lengthy and impassioned dissent arguing that the majority's ruling was a radical departure from longstanding precedent and a misunderstanding of the First Amendment. He contended that corporations are not the same as natural persons for purposes of political speech rights, that the Framers of the Constitution did not intend to grant corporations the same free speech protections as individuals, and that the government has a compelling interest in preventing the corrosive effects of massive corporate spending on democratic self-governance.
- The legal concept of corporate personhood does not mean that corporations enjoy the identical constitutional rights as living, breathing human beings — corporations are legal constructs created by the state, and the state has long been permitted to regulate their political activities.
- The majority's narrow focus on quid pro quo corruption ignores other well-recognized dangers of unchecked corporate political spending, including the undue influence corporations can exert over elected officials and the erosion of public confidence in democratic institutions.
- The Court violated principles of judicial restraint and stare decisis by reaching out to overrule Austin and McConnell when the case could have been resolved on much narrower grounds, such as finding that the film was not the type of electioneering communication Congress intended to regulate.
- Centuries of legislative practice, from the Founding era through the Tillman Act of 1907 and beyond, reflect a consistent national understanding that the government may place limits on corporate participation in elections to protect the integrity of the democratic process.
Background & Facts
Citizens United is a nonprofit conservative advocacy organization funded in part by corporate donations. In 2008, as Senator Hillary Clinton was campaigning for the Democratic presidential nomination, Citizens United produced and sought to distribute a 90-minute documentary film called 'Hillary: The Movie.' The film was sharply critical of Clinton and featured interviews with political commentators and journalists questioning her fitness for the presidency. Citizens United wanted to make the film available through video-on-demand cable services and to run television advertisements promoting the film during the weeks leading up to primary elections.
The problem was a federal law known as the Bipartisan Campaign Reform Act of 2002 (BCRA), often called the McCain-Feingold Act. Among other things, BCRA made it illegal for corporations and labor unions to use money from their general treasuries to pay for 'electioneering communications' — broadcast, cable, or satellite advertisements that mentioned a clearly identified federal candidate within 30 days of a primary election or 60 days of a general election. The law required that any such spending be routed through a separate political action committee (PAC) funded solely by voluntary individual contributions. Citizens United worried that both the film and its promotional ads would be treated as illegal electioneering communications under BCRA, so it filed a lawsuit seeking to block the Federal Election Commission from enforcing those provisions.
A special three-judge panel of the U.S. District Court for the District of Columbia ruled against Citizens United. The lower court concluded that 'Hillary: The Movie' was the functional equivalent of express campaign advocacy against Clinton, making it squarely subject to BCRA's restrictions on corporate-funded electioneering communications. The court relied on the Supreme Court's earlier decisions that had upheld restrictions on corporate political spending.
Citizens United appealed directly to the Supreme Court, which heard oral arguments in March 2009. In an unusual move, the Court ordered the case to be reargued the following September, asking the parties to address a much broader question: whether the Court should overrule its earlier precedents that had allowed the government to restrict independent corporate political expenditures entirely. This signaled that the justices were considering a far-reaching ruling that could reshape American campaign finance law. The reargument drew enormous public attention, with dozens of amicus briefs filed on both sides.
The Arguments
Citizens United argued that the First Amendment protects the right of corporations and nonprofit organizations to spend money from their general treasuries on political speech, including films and advertisements about candidates. They contended that BCRA's restrictions on electioneering communications amounted to government censorship of political expression based solely on the corporate identity of the speaker.
- The First Amendment does not distinguish between individual speakers and corporate speakers — political speech is protected regardless of who is doing the speaking.
- The film was a form of political commentary and debate about a public figure, precisely the kind of speech the First Amendment was designed to protect most vigorously.
- Requiring corporations to speak only through PACs funded by voluntary individual contributions is an unconstitutional burden that effectively silences corporate political speech, since PACs are expensive and cumbersome to administer.
- The government's interest in preventing corruption does not justify banning independent expenditures, because independent spending — by definition not coordinated with a candidate — does not create the same risk of quid pro quo corruption as direct contributions.
The FEC argued that Congress had a legitimate and compelling interest in regulating corporate money in elections to prevent corruption or the appearance of corruption, and that the restrictions on corporate electioneering communications were a reasonable, well-established exercise of that power consistent with prior Supreme Court rulings.
- The Supreme Court had previously upheld restrictions on corporate independent expenditures in Austin v. Michigan Chamber of Commerce (1990) and upheld the electioneering communications provision of BCRA in McConnell v. FEC (2003), and those precedents should be respected under the principle of stare decisis.
- Corporations can accumulate vast sums of wealth that have little or no correlation to public support for their political ideas, and allowing unlimited corporate spending could distort the political process and drown out the voices of ordinary citizens.
- The law did not ban corporate political speech entirely — it simply required corporations to use separately funded PACs for electioneering communications, which is a reasonable time, place, and manner restriction rather than an outright prohibition.
- Preventing both actual corruption and the appearance of corruption is a sufficiently compelling government interest to justify the modest burden BCRA placed on corporate speakers.