The First Amendment ensures that all who speak, popular and unpopular alike, are afforded the same degree of protection, and that the remedy for unfavored speech is more speech, not less. The utility of this First Amendment ethos, however, has long been called into question when the corrupting influence of corporate and union money in elections is at issue.
In 2010, the Supreme Court decided Citizens United v. Federal Election Commission, which held that "independent expenditures" by corporations – i.e., money not officially coordinated with a candidate's campaign but nevertheless spent to expressly advocate the election or defeat of a clearly identifiable candidate – may not be prohibited by Congress, since to do so would infringe corporations' First Amendment free-speech rights. Understanding the significance of the Citizens United decision requires a background in the historical development of campaign finance law in the United States – for, in several respects, the Citizens United decision was simply a reaffirmation of prior Supreme Court precedents.
Campaign finance law in the United States did not arise from a cohesive theoretical grounding. Rather, it was an ad hoc response to very real problems of political corruption in the first century of our nation's constitutional government.
George Washington was both the first and the last president to ever be untethered to a political party. During his presidency, the two-party system that would dominate American politics began to emerge. The first identifiable parties were the Federalists, led by Alexander Hamilton, and the Democratic-Republicans, led by Thomas Jefferson and James Madison.
The parties primarily used the printed press to propagate their ideas. They worked to curry favor with the country's various newspapers, often by paying off their editors and in some cases funding their own periodicals. By the end of George Washington's second term, Federalist newspapers outnumbered Democratic-Republican papers 4 to 1. Not surprisingly, the Federalist candidate, Jon Adams, defeated Thomas Jefferson and was elected our second president. By the next election, the Democratic-Republicans had narrowed the Federalists' newspaper advantage and successfully implemented new techniques such as mass distribution of pamphlets and handwritten ballots that could simply be dropped in the box on Election Day. Their candidate, Thomas Jefferson, won the next election.
Over the next few decades, as each party sought an advantage, a new system of building and maintaining party loyalty emerged: political patronage. Under this system, supporters were promised sinecures – well-paid, do-nothing jobs – in the administration if their party's favored candidate was elected. In turn, the supporters awarded jobs were expected to show their loyalty by directing portions of their pay back to their political party. By the latter part of the 1800s, most government employees effectively paid "taxes" to the parties to which they owed their jobs. This arrangement became the principal source of revenues for political parties and their candidates.
Out of concerns that the parties had become breeding grounds for corruption and that federal workers beholden to political patronage were unfit for their jobs, a popular reform movement grew. In 1867, Congress passed the first campaign finance reform law, contained in the 1867 Naval Appropriations Bill. It prohibited officers and other government employees from soliciting political party contributions from Navy Yard workers. It was a small concession.
In 1881, less than two decades after President Lincoln's assassination, the nation was stunned by a second presidential assassination: James A. Garfield, on his way to board a train barely four months into his presidency, was shot twice by Charles J. Guiteau. Guiteau was a disgruntled and delusional campaign worker who thought himself responsible for Garfield winning the presidency. In return, he asked to be appointed ambassador to France for his efforts, but his request was denied. Infuriated, he bought a revolver and planned his revenge.
Garfield's death threw the system of political patronage into the limelight, and the public call for reform grew louder. Chester B. Arthur, Garfield's Vice President, staked his presidency on a bill to reform the system. While his efforts to enact legislation succeeded, the Republican Party withdrew its support of him as a result and he lost the party's nomination by the next election.
The Pendleton Civil Service Reform Act
In 1883, President Arthur signed the Pendleton Civil Service Reform Act. Among other protections, the new law ordered that certain government jobs be awarded on the basis of merit rather than political affiliation. The law remains in place today. Although the Act expanded upon the 1867 Naval Appropriations Bill and increased the number of federal jobs free from political patronage, it did not apply to state and local positions and covered a limited number of federal jobs. Nonetheless, the Act slowly ratcheted up the number of protected positions over the following years until most federal jobs fell under its protection.
With their major sources of money being swept away, political parties scrambled to find other funding. Increasingly, they turned to wealthy individuals and corporations. Instead of trading government jobs for donations, politicians began threatening corporations with new regulations and taxes if they failed to pay their dues.
In 1896, a wealthy Ohio shipping magnate and brilliant political strategist, Mark Hanna, became Chairman of the Republican National Committee and championed William McKinley's candidacy for president. Hanna systematically rallied wealthy patrons and corporations, asking them to donate a quarter of one percent of their assets to the party and even refunding or turning down excessive contributions. He also ran what many consider to be the first modern campaign: distributing posters, badges, and buttons bearing McKinley's image across the nation. McKinley won the next election.
This new form of electioneering was expensive, however, and relied heavily on the cooperation of large donors. The increasing influence of the wealthy and corporations in elections led to a backlash from the public.
When the assassination of William McKinley by an anarchist brought Theodore Roosevelt to the presidency, Roosevelt seized upon popular anti-corporate sentiment and began a war on monopolies. To forestall defeat in the next election, however, Roosevelt sought the support of wealthy bankers and industrialists.
After his reelection, several businessmen came forward and admitted to giving Roosevelt large contributions. Embarrassed by these revelations, Roosevelt played to public sentiment and set his sights on campaign finance reform. He announced:
All contributions by corporations to any political committee or for any political purpose should be forbidden by law; directors should not be permitted to use stockholders' money for such purposes; and, moreover, a prohibition of this kind would be, as far as it went, an effective method of stopping the evils aimed at in corrupt practices acts.
Tillman Act of 1907
Two years later, Congress passed the Tillman Act of 1907, the first nationwide restraint on corporate financing of elections, which made it unlawful for any national bank or corporation to make a money contribution in connection with any election for President or member of Congress. The Senate Report on the legislation declared that "[t]he evils of the use of [corporate] money in connection with political elections are so generally recognized that the committee deems it unnecessary to make any argument in favor of the general purpose of this measure." Weak enforcement mechanisms, however, left the Act largely toothless.
In 1910, Congress passed the Publicity Act, which required national parties to disclose campaign receipts and expenditures. The next year, Congress extended the reporting requirements to all federal candidates and set limits on the amount of money candidates were allowed to spend on their own campaigns - $5,000 for a House seat and $10,000 for a Senate seat.
Hatch Act of 1939
In 1939, Congress passed the Hatch Act, which established the first contribution limit for individuals, prohibiting annual contributions of more than $5,000 to federal campaigns.
Wartime strikes by large unions, including the 400,000 strong United Mine Workers, gave rise to new fears that, at the same time corporations were amassing political power via huge political contributions, the influential labor unions were pursuing a similar course. Congress responded with the War Labor Disputes Act of 1943, extending to labor unions the prohibition against corporate contributions to federal campaigns.
Taft-Hartley Act of 1947
Congress worried that courts were interpreting the current campaign finance law so narrowly as to open a loophole whereby "corporations, national banks, and labor organizations are enabled to avoid the obviously intended restrictive policy of the statute by [terming] their financial assistance in the form of an ‘expenditure' rather than a contribution." The Report of the House Special Committee to Investigate Campaign Expenditures in 1946 wrote: "Of what avail would a law be to prohibit the contributing direct to a candidate and yet permit the expenditure of large sums in his behalf?"
Congress responded in 1947 with the Labor Management Relations Act, also known as the Taft-Hartley Act, which extended the prohibitions on corporate and union contributions, for the first time, to independent expenditures. Truman vetoed the bill, believing it infringed on the First Amendment rights of unions and corporations. Congress, however, with a majority of both parties supporting the bill, overrode Truman's veto.
Birth of the PAC
The new law did not prohibit the right of a union to establish a segregated fund, separate from its general treasury, where members of the union could make donations for the purpose of making campaign contributions and expenditures. Thus, the political action committee (PAC) was born.
A PAC is a separate organization created by a corporation or union that solicits donations for political use from employees, managers, stockholders, or members of the organization. PACs were not permitted to seek donations from the general public. The solution of the PAC was thought to avoid the problems of exacting political contributions from dissenting stockholders, customers or members.
In 1948, the Court heard the case of United States v. CIO, which reviewed the indictment of a labor organization and its president under the Taft-Hartley Act for endorsing a congressional candidate in the organization's weekly periodical–an act that the government believed was a prohibited expenditure, since it involved the expenditure of money from the union's general treasury (rather than a PAC) in support of a candidate's campaign. The Court held:
If [the Taft-Hartley Act] were construed to prohibit the publication, by corporations and unions in the regular course of conducting their affairs, of periodicals advising their members, stockholders or customers of danger or advantage to their interests from the adoption of measures or the election to office of men, espousing such measures, the gravest doubt would arise in our minds as to its constitutionality.
The Court held that the Act did not forbid CIO's conduct in this case, but declined to consider the constitutionality of the prohibition on union political expenditures. Justice Rutledge, joined by three other Justices, concurred in the judgment, but wrote that the Court should have reached the constitutional question and invalidated the Act's expenditure ban.
Similarly, in 1966, the Supreme Court in Mills v. Alabama heard a case involving a state law that made it a crime for the editor of a daily newspaper to write and publish an editorial on Election Day urging people to vote a certain way. The Court held that "no test of reasonableness can save [such] a state law from invalidation as a violation of the First Amendment."
And, in 1974, in Miami Herald Publishing Co. v. Tornillo, the Court considered a Florida statute, which required any newspaper that criticized any candidate to print the candidate's reply. The Court held that under the First Amendment, Florida could not constitutionally compel a newspaper to print a political candidate's reply to its criticism.
Federal Elections Campaign Act (FECA)
In the early 1970s, America was shocked and outraged when the Watergate scandal was revealed. In response to public sentiment, Congress, in 1974, passed the Federal Elections Campaign Act (FECA), the most comprehensive and foundational campaign finance law in our nation's history.
Among its many provisions, the law: (1) established the Federal Election Commission to enforce compliance with campaign finance law; (2) introduced strict contribution limits; (3) limited the amount of money a candidate or his family could give to his own campaign; (4) placed strict limits on what individuals, parties, and political committees could spend in federal elections; (5) established total spending limits by candidates and parties in presidential and congressional elections; and (4) created a voluntary system of public financing for presidential elections. Unlike the Taft-Hartley Act, FECA included a press exemption. Mere days after the passage of the new law, a case was brought challenging it.
Buckley v. Valeo
In 1975, the seminal case of Buckley v. Valeo reached the Supreme Court. At oral arguments, Justice Douglas, who had suffered a debilitating stroke a year earlier and was wheelchair bound, unexpectedly fell ill and was helped out of the room. Two days later, he resigned from the Court. Only eight Justices would decide Buckley.
On January 30, 1976, the court issued a 235-page opinion, which would become the benchmark for all subsequent Supreme Court opinions on the subject of campaign finance.
The Court began by noting, "[V]irtually every means of communicating ideas in today's mass society requires the expenditure of money." The Court, thus equating money with speech, evaluated FECA's major provisions to determine the degree to which they infringed free speech. It then applied its strict scrutiny test to determine whether the infringement was narrowly tailored to achieve a compelling governmental interest. The government had urged that the law was justified to further its interest in preventing corruption and the appearance of corruption in elections.
The Court referred to reports on the 1972 election finding that two to three percent of the wealthiest people in the country were responsible for 95 percent of the financing for Congressional elections. The reports also found that many interest groups gave money to two or more opposing candidates running for the same office in the same race. The conclusions drawn from this were that many contributions were not being made as ideological speech, but rather as a Machiavellian bid to curry favor with elected officials after the election.
CONTRIBUTION LIMITS ON INDIVIDUALS UPHELD
The Court first evaluated the Act's contribution limits on donations made directly to candidates. The Court noted, "A contribution serves as a general expression of support for the candidate and his views, but does not communicate the underlying basis for the support." The Court held that as long as the limits were not so low as to prevent candidates and political committees from amassing the resources necessary for effective campaigning, they were a minor intrusion on free speech. More important to the Court was ensuring that individual members of the public be free to spend their money to express their own direct positions on political issues, rather than through the mouthpiece of a candidate or political party.
INDEPENDENT EXPENDITURE LIMITS ON INDIVIDUALS STRUCK DOWN
Although the Court upheld restrictions on direct contributions, it did not extend its reasoning to limits on independent expenditures made by individuals. The Court noted that in the contribution limits context, the chief evil to be prevented is quid pro quo corruption, a favor or advantage given in direct exchange for something. Independent expenditures, on the other hand, were, by definition, not coordinated in any way with a political candidate. If an expenditure was found to be coordinated, the Court explained, then it should be deemed a contribution and treated accordingly. The Court further noted that while the independent expenditure limit may have the purpose of equalizing the relative ability of people to speak by reducing the outsized influence of the rich, "the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment."
After making these findings, the Buckley Court, 7-1, with only Justice White in dissent, struck down the independent expenditure limits for individuals.
CORPORATIONS, UNIONS AND ISSUE ADVOCACY
Importantly, however, the Court did not consider and left intact the prohibition against corporations and unions making any contributions or expenditures in connection with any election. Nevertheless, in a portion of the ruling that was unanimous, the Court left these entities with an important carve out – that of issue advocacy. FECA's definition restricted only those expenditures "relative to a clearly identifiable candidate." The Court noted that this broad definition would be unconstitutionally vague if it was not interpreted to apply only to expenditures for communications that in express terms advocate the election or defeat of a clearly identified candidate for federal office. Expenditures not expressly advocating the election or defeat of a clearly identifiable candidate were deemed mere issue advocacy, permitting a corporation or union to take a position on an issue without endorsing a particular candidate.
This ruling gave rise to the so-called "magic words" rule of independent expenditures–that is, in order for money spent in support of campaigns to be covered by the independent expenditure law it had to expressly urge its audience to "vote for," "elect," "support," "cast your ballot for," "vote against," "defeat," or "reject" a particular candidate. Not surprisingly, after Buckley, corporations increasingly began to participate in and fund issue advocacy. Since the law did not touch issue advocacy, organizations could spend unlimited amounts of money on such advocacy.
OTHER PROVISIONS STRUCK DOWN IN BUCKLEY
The Buckley Court next struck down by a 6-2 vote statutory limits on how much candidates and their immediate families could spend on their own campaigns, noting that there is no threat of quid pro quo corruption when a candidate gives to himself. The only justification for personal funds limits was to equalize the relative financial resources of the candidates–which the Court had determined was not a valid purpose.
The Court then voted 7-1, with only Justice White dissenting, to strike down ceilings on overall campaign expenditures as unconstitutional. They noted that statistics put forth by the Appeals Court showed that while the consumer price index between 1952 and 1972 rose 57.6%, the cost of federal election campaigns during the same period increased 300%. The Court held, however, that the mere growth in the cost of federal election campaigns was not sufficient to justify abrogating the First Amendment, which the Court held "denies government the power to determine that spending to promote one's political views is wasteful, excessive, or unwise."
DISCLOSURE AND REPORTING REQUIREMENTS UPHELD
The Buckley Court then took on the Act's disclosure and reporting requirements, requiring candidates and political committees (including PACs) to keep detailed records of contributions and expenditures, including the name and address of each individual contributing in excess of $10. If the contribution exceeded $100, the Act additionally required disclosure of the occupation and principal place of business of the contributor in quarterly reports filed with the FEC.
The Court held 6-2 that these disclosure requirements were constitutional. The Court even upheld the disclosure requirements with respect to the independent expenditure limits for individuals that they had just struck down. Therefore, while individuals could spend as much as they wanted on independent expenditures, they were still required to comply with the statute's reporting requirements. Nevertheless, the express advocacy definition remained, such that disclosure was only required for independent expenditures expressly advocating the election or defeat of a clearly identifiable candidate.
In upholding reporting and disclosure requirements, the Court noted that while public disclosure of contributions and expenditures would deter some individuals who otherwise might contribute–and, in some cases, might even expose contributors to harassment or retaliation–the record contained no evidence that such things had occurred. But the Court said that disclosure requirements must necessarily be excused where there is a reasonable probability that compelled disclosure of a contributor's name will subject them to threats, harassment, or reprisals from either Government officials or private parties.
VOLUNTARY PUBLIC FINANCING SYTEM UPHELD
The Buckley Court next considered the voluntary public financing of presidential election campaigns established by the new law. To be eligible for funds, the candidate must pledge not to accept private contributions in general elections. Under the law, major parties–those whose candidates received 25% or more of the vote in the last election–were limited to $2,000,000 in spending to prepare for their party's primary and $20,000,000 to prepare for the general election. The primary amount was subsequently increased to $10 million or half of the general election amount. The limits were subject to inflation and today stand at $45.6 million for the primary stage and $91.2 million for the general election.
While many candidates choose not to accept public financing at the primary stage, almost all who qualify choose to accept it in the general elections. Indeed, no major party nominee turned down government funds for the general election from 1976 onward until Barack Obama did so in 2008, when he independently raised nearly $750 million for the general election. The voluntary public financing system is funded by individual taxpayers, who, on their income tax returns, may choose to authorize payment of three dollars of their tax liability to the Fund. In 2010, less than 7% of taxpayers opted to authorize payment to the Fund. The Court in Buckley upheld the system as constitutional.
CREATION OF THE FCC
Lastly, the Court in Buckley, with only Justice White in dissent, held that in creating the FEC Congress had violated the Appointments Clause of the Constitution, since the Commission's voting members were Officers of the United States, but the Act did not give the President the required authority to appoint and dismiss the members of the commission–it vested this power unconstitutionally in the Speaker of the House and the President pro tempore of the Senate. The Buckley Court gave Congress thirty days to correct this constitutional defect, which Congress quickly addressed. Today, the FEC is staffed with six members appointed by the President and confirmed by the Senate with no more than three members being of the same political party and requiring four votes for any official commission action.
Buckley served as a foundation for all subsequent Supreme Court cases on the subject of campaign finance, and although it left many questions unanswered, it provided the starting point for all the Court's subsequent considerations of campaign finance.
First National Bank of Boston v. Bellotti and Corporate Speech
Two years after Buckley, in 1978, the Supreme Court heard the case of First National Bank of Boston v. Bellotti, a case that would become a key precedent cited by the majority in Citizens United. National banking associations and business corporations in Massachusetts wanted to spend money to publicize their views opposing a referendum to amend the Massachusetts Constitution to authorize the legislature to enact a graduated personal income tax. Under Massachusetts law, corporations were prohibited from making contributions or expenditures "for the purpose of . . . influencing or affecting the vote on any question submitted to the voters" unless it "materially affected any of the property, business or assets of the corporation." The statute went on to say, however, that "[n]o question submitted to the voters solely concerning the taxation of the income, property or transactions of individuals shall be deemed materially to affect the property, business or assets of the corporation." Massachusetts had no PAC option either–corporations simply could not make expenditures to opine on the matter at all. The banking association and corporation brought suit, arguing that the Massachusetts statute was unconstitutional.
The court in a 5-4 opinion held that this rubric was indeed unconstitutional. The Court first noted: "If the speakers here were not corporations, no one would suggest that the State could silence their proposed speech." The Court then considered whether the corporate identity of the speaker here deprived it of a First Amendment challenge. It held that it did not: "We thus find no support in the First or Fourteenth Amendment, or in the decisions of this Court, for the proposition that speech that otherwise would be within the protection of the First Amendment loses that protection simply because its source is a corporation."
The Bellotti Court was also careful to distinguish electioneering from the expenditure in this case. The majority explained: "The overriding concern behind the enactment of statutes such as the Federal Corrupt Practices Act was the problem of corruption of elected representatives through the creation of political debts. The importance of the governmental interest in preventing this occurrence has never been doubted." Here, however, the majority explained, there was no comparable corrupt practices problem, because the referendum the banking associations and corporations were taking a position on would be voted on by the public, who were not indebted to the groups in the same way that legislators who could lose campaign funding for voting against corporate interests would be.
The Court in Bellotti emphasized an idea that figured centrally in Citizens United: that most media entities are corporations, and if state law bans corporations from spending to affect an election, what prevents those laws from being applied to media companies? The majority summarizes an argument made in a three-Justice dissent by Justice White as follows: "MR. JUSTICE WHITE argues, without support in the record, that, because corporations are given certain privileges by law, they are able to ‘amass wealth' and then to ‘dominate' debate on an issue." The Bellotti majority responds: "The potential impact of this argument, especially on the news media, is unsettling. One might argue with comparable logic that the State may control the volume of expression by the wealthier, more powerful corporate members of the press in order to ‘enhance the relative voices' of smaller and less influential members." The Court in Bellotti disposed of inequality and corporate-domination arguments in much the same way the Buckley Court did, but added to the discussion the question of what to do about media conglomerates.
Justice Rehnquist and the Anti-Distortion Rationale
One of the more surprising revelations in the Court's campaign finance jurisprudence is the position of former Chief Justice William Rehnquist, one of the most revered conservative Justices, who served on the Court for 33 years and as Chief Justice for 18 years. Rehnquist had been in the Buckley majority, except with regards to the public financing system in presidential races, which he believed unconstitutionally favored the major parties at the expense of new and minor parties. In Bellotti, however, Rehnquist dissented in whole, arguing that corporations only have the rights that are given to them by the State (known as the concession theory of corporations). His impassioned dissent quotes Chief Justice Marshall's view of corporations:
A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of creation confers upon it, either expressly or as incidental to its very existence. These are such as are supposed best calculated to effect the object for which it was created.
Chief Justice Rehnquist continued:
Although the Court has never explicitly recognized a corporation's right of commercial speech, such a right might be considered necessarily incidental to the business of a commercial corporation. It cannot be so readily concluded that the right of political expression is equally necessary to carry out the functions of a corporation organized for commercial purposes. A State grants to a business corporation the blessings of potentially perpetual life and limited liability to enhance its efficiency as an economic entity. It might reasonably be concluded that those properties, so beneficial in the economic sphere, pose special dangers in the political sphere.
In one of the many seemingly impossible reversals at the Supreme Court, and with only one change in Justices (Potter Stewart replaced by Sandra Day O'Connor), Justice Rehnquist, who filed a lone dissent in Bellotti, became the author of the Court's unanimous 1982 decision in FEC v. National Right To Work.
In that case, the Court for the first time directly considered limitations on corporate PACs. The National Right to Work Committee (NRWC), a nonprofit corporation which seeks to oppose compulsory unionism (that is, to protect workers from being forced to be members of union) solicited some 267,000 contributions from the general public, not just from its members, to fund its PAC for the purpose of making direct contributions to candidates.
The Court unanimously held that NRWC's conduct violated federal law and that Congress had properly justified any intrusion upon the defendant's First Amendment rights. Rehnquist wrote:
The first purpose of [the law here], petitioners state, is to ensure that substantial aggregations of wealth amassed by the special advantages which go with the corporate form of organization should not be converted into political "war chests" which could be used to incur political debts from legislators who are aided by the contributions. The second purpose of the provisions, petitioners argue, is to protect the individuals who have paid money into a corporation or union for purposes other than the support of candidates from having that money used to support political candidates to whom they may be opposed. We agree with petitioners that these purposes are sufficient to justify the regulation at issue.
The argument that corporations pose special risks because of their great amalgamations of wealth that had the potential to distort the political process if directed to those ends became known as the "anti-distortion rationale" for limiting corporate political activity. While Buckley and Bellotti eschewed reliance on the anti-distortion rationale and the innocent-investor theory, Rehnquist reinfused those rationales into the Court's jurisprudence. National Right to Work signaled a turning point in the Court's campaign finance jurisprudence: it was the Court's first unanimous judgment in a campaign finance case and it showed unprecedented willingness to apply the anti-distortion rationale. But National Right to Work was a case concerning contributions, not independent expenditures.
Three years later in Federal Election Commission v. National Conservative Political Action Committee, the Court considered another case involving a PAC, but this time considered the right of PACs to make independent expenditures. In the run-up to the 1984 election, then-President Ronald Reagan opted to receive public financing. Two PACs, the National Conservative Political Action Committee (NCPAC) and Fund For a Conservative Majority, nevertheless announced that they planned to spend large sums of money to help bring about Reagan's reelection. The FEC brought a declaratory judgment suit seeking to determine the constitutionality of the law forbidding the PACs to spend more than $1,000 in independent expenditures when a president has agreed to take public financing.
In a 7-2 opinion authored by Justice Rehnquist, the Court held that the law was an unconstitutional violation of free speech. It made clear that when it comes to expenditures, as opposed to contributions, PACs are entitled to First Amendment protection. While Rehnquist was willing to embrace the anti-distortion rationale in the case of contributions, he was unwilling to equate the dangers of an outsized influence by corporations on elections when coordinated with political candidates with corporations spending money to influence elections not coordinated with candidates. Rehnquist wrote:
It is of course hypothetically possible here, as in the case of the independent expenditures forbidden in Buckley, that candidates may take notice of and reward those responsible for PAC expenditures by giving official favors to the latter in exchange for the supporting messages. But here, as in Buckley, the absence of prearrangement and coordination undermines the value of the expenditure to the candidate, and thereby alleviates the danger that expenditures will be given as a quid pro quo for improper commitments from the candidate. On this record, such an exchange of political favors for uncoordinated expenditures remains a hypothetical possibility, and nothing more.
Rehnquist further noted that even if there was evidence of corruption or the appearance of corruption here the statute was too broad in any case, not just applying to multimillion dollar corporations but to any "committee, association, or organization (whether or not incorporated)," which would apply equally to small groups such as an informal neighborhood group that solicits contributions as it would to multinational corporations.
Justice Scalia Joins the Debate
The next year, the Court issued its opinion in FEC v. Massachusetts Citizens for Life and was divided again, with now-Chief Justice Rehnquist back in dissent and a newly appointed Justice, Antonin Scalia, joining the majority. In Massachusetts Citizens for Life, a nonprofit, nonstock corporation, whose avowed purpose is to foster respect for human life, born and unborn, published a newsletter expressly advocating that its readers vote for pro-life candidates in the upcoming primary elections in Massachusetts. It listed the candidates for each state and federal office in every voting district in the State, and identified each one as either supporting or opposing a right to life position. While some 400 candidates were listed, the photographs of only 13 candidates were featured, all of whom were identified as favorable. The publication was prepared by a staff that had prepared no regular newsletter, was distributed to a much larger audience than that of the regular newsletter, most of whom were members of the general public, and was financed by money taken from the nonprofit's general treasury funds.
The FEC filed an action in a Massachusetts federal court for violation of the provision of federal campaign finance law which prohibits corporations from using treasury funds to make an independent expenditure "in connection with" any federal election, and requires instead that any expenditure for such purpose be financed by voluntary contributions by employees, stockholders or members to a separate segregated fund known as a PAC. While the Court in Buckley v. Valeo had struck down the limits on independent expenditures made by individuals, the ruling had not considered the ban on corporate independent expenditures. In a 5-4 decision, the majority, in an opinion authored by Justice Brennan and joined by Justices Marshall, Powell, O'Connor and Scalia, held unconstitutional the application of the corporate independent expenditure ban to a nonprofit issue-advocacy organization.
The majority began by breathing new life into the anti-distortion rationale, stating that the rationale behind the rule banning corporate independent expenditures rests upon four grounds: "the need to restrict ‘the influence of political war chests funneled through the corporate form;' to ‘eliminate the effect of aggregated wealth on federal elections;' to curb the political influence of ‘those who exercise control over large aggregations of capital;' and to regulate the 'substantial aggregations of wealth amassed by the special advantages which go with the corporate form of organization.'" This endorsement of the anti-distortion rationale, however, amounted to nothing more than dicta (that is, a portion of a majority opinion that is not essential to the holding of the Court), since the Court in Massachusetts Citizens for Life ultimately found that the anti-distortion rationale did not apply to issue-advocacy corporations formed to disseminate political ideas, rather than to amass capital.
Chief Justice Rehnquist authored the four-Justice dissent arguing that the nonprofit corporation here was just like the nonprofit corporation in National Right To Work, and that if it wished to participate in the world of political expenditures, it should establish a separate fund in the form of a PAC just like any other corporation and seek donations from its members.
The Court's decision in Massachusetts Citizens for Life marked the second time since the Court's decision in First Nation Bank of Boston v. Bellotti, in 1978, that the Court found unconstitutional a regulation that restricted only corporate political activity.
Austin and the Anti-Distortion Rationale
Four years later, the court in Austin v. Michigan Chamber of Commerce (1990) would make the anti-distortion rationale central to its holding. In a 6-3 majority opinion authored by 83-year-old Justice Thurgood Marshall, who would retire a year later, and joined by Justice Rehnquist, the Court held that a nonprofit corporation, whose bylaws set forth both political and nonpolitical purposes, was bound by a prohibition against independent expenditures from the corporation's general treasury. The nonprofit corporation at issue, Michigan Chamber of Commerce, sought to use general treasury funds to run a newspaper ad expressly advocating support for a specific candidate. Aware of its direct conflict with a provision of Michigan law that mirrored the federal law prohibiting it from doing so, the organization brought suit seeking to enjoin the law's enforcement as applied to it as unconstitutional.
In upholding the validity of the law, the Austin majority took for granted that the use of funds to support a political candidate is "speech" and that independent campaign expenditures constitute "political expression ‘at the core of our electoral process and of the First Amendment freedoms.'" The Court, however, held:
Regardless of whether this danger of "financial quid pro quo" corruption may be sufficient to justify a restriction on independent expenditures, Michigan's regulation aims at a different type of corruption in the political arena: 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. The Act does not attempt "to equalize the relative influence of speakers on elections," rather, it ensures that expenditures reflect actual public support for the political ideas espoused by corporations. We emphasize that the mere fact that corporations may accumulate large amounts of wealth is not the justification; rather, the unique state-conferred corporate structure that facilitates the amassing of large treasuries warrants the limit on independent expenditures. Corporate wealth can unfairly influence elections when it is deployed in the form of independent expenditures, just as it can when it assumes the guise of political contributions. We therefore hold that the State has articulated a sufficiently compelling rationale to support its restriction on independent expenditures by corporations.
The Austin majority stressed that the special advantages given to corporations, such as limited liability, perpetual life, and favorable treatment in the accumulation and distribution of assets, differentiated them from wealthy individuals and made them all the more dangerous when those advantages were employed for political purposes rather than economic ends.
Justice Marshall also approved of the Michigan statute's exclusion of unincorporated labor unions from the scope of the statute in accord with several Supreme Court cases that had held that unions could not compel employees to financially support "union activities beyond those germane to collective bargaining, contract administration, and grievance adjustment." A dissenting union member who objects may seek reimbursement of their portion of fees spent on the political positions with which they disagree. Justice Marshall, therefore, concluded that as a result of these rules, the funds available for a union's political activities more accurately reflect members' support for the organization's political views than do funds from a corporation's general treasury.
Justice Kennedy, joined by Justices O'Connor and Scalia dissented, accusing the majority of departing from Buckley, Bellotti and Michigan Right to Life in not only upholding a direct restriction on independent expenditures for political speech but creating a new value-laden, content-based speech obstacle, born of a hostility to the corporate form that is unjustified and imprecise and yet serves to support a severe restriction on political speech.
Justice Scalia, although joining Justice Kennedy's dissenting opinion, filed a dissenting opinion of his own. Justice Scalia wrote:
Despite all the talk about "corruption and the appearance of corruption" – evils that are not significantly implicated and that can be avoided in many other ways – it is entirely obvious that the object of the law we have approved today is not to prevent wrongdoing, but to prevent speech. Since those private associations known as corporations have so much money, they will speak so much more, and their views will be given inordinate prominence in election campaigns. This is not an argument that our democratic traditions allow – neither with respect to individuals associated in corporations nor with respect to other categories of individuals whose speech may be "unduly" extensive (because they are rich) or "unduly" persuasive (because they are movie stars) or "unduly" respected (because they are clergymen). The premise of our system is that there is no such thing as too much speech – that the people are not foolish, but intelligent, and will separate the wheat from the chaff.
Although the pronouncements of Justice Kennedy and Justice Scalia in Austin held no precedential value because they were dissents, their dissents would ultimately win the day in Citizens United.
Colorado I and II
Six years after Austin, in Colorado Republican Federal Campaign Committee v. FEC (1996), the Court considered limits on the independent expenditures of political parties in a senatorial campaign in Colorado. The limits would have limited the Colorado parties to an expenditure of a little over $100,000 in the senatorial race. The Colorado Republican party spent more by buying radio advertisements attacking the Democratic Party's likely candidate. The FEC brought suit. While seven Justices agreed that the application of the statute limiting party independent expenditures as applied here was unconstitutional, they failed to achieve a majority consensus on the reasons why.
The Colorado case returned to the Supreme Court five years later in 2001 in what is known as Colorado 2. The Tenth Circuit below had decided a broader question concerning whether limitations of party expenditures coordinated with candidates were valid. The Colorado Republican party argued, however, that there is naturally coordination between a party and its candidate and that because the two are so intertwined, they should be treated as one and the same, such that the party can spend unlimited amounts on the candidate's campaign. The Tenth Circuit held that the limitations were valid.
This time, the Supreme Court achieved a majority on the rationale, agreeing with the Tenth Circuit. In a 5-4 opinion authored by Justice Souter, the Court held that coordinated expenditures, unlike truly independent expenditures, may be restricted to minimize circumvention of the Federal Election Campaign Act's contribution limits. The Court reasoned that (1) parties perform functions more complex than simply electing candidates; (2) people may give money to a political party for broader or narrower reasons than to elect a particular candidate, indeed, even where they may oppose one or more of the party's candidates; and (3) if political parties and candidates are not treated separately, then parties could be used as conduits for contributions meant to place candidates under obligation. At the time, contributors could give a maximum of only $2000 to any particular candidate, but a higher maximum of $20,000 to a political party in a given year.
Justice Thomas, who in Colorado I issued a lone dissent urging the Court to overrule Buckley's holding that contribution limits are entitled to less First Amendment protection than expenditure limits, now, in Colorado 2, was joined in that opinion by Justices Kennedy and Scalia. Thomas argued:
A party nominates its candidate; a candidate often is identified by party affiliation throughout the election and on the ballot; and a party's public image is largely defined by what its candidates say and do. "[I]t would be impractical and imprudent . . . for a party to support its own candidates without some form of ‘cooperation' or ‘consultation.'" "[C]andidates are necessary to make the party's message known and effective, and vice versa." Thus, the ordinary means for a party to provide support is to make coordinated expenditures.
In 2002, Congress passed the Bipartisan Campaign Reform Act, also known as McCain-Feingold, the most significant piece of campaign finance legislation since the Federal Election Campaign Act of 1971. The Act was designed to confront two problems that had been identified since the 1971 law was passed: soft money and issue ads.
First, the act addressed the problem of soft money. Hard money is money that is regulated by campaign finance law because it is given for the purpose of influencing a federal election. Conversely, soft money is money not regulated by federal campaign finance law because it is not regarded as having a purpose of influencing a federal election. In 1971, when the Federal Elections Campaign Act took effect, soft money was used to influence state and local elections. Through several rulings of the FEC, however, the role of soft money expanded. In the late 1970s, the FEC began permitting parties to use soft money in part to finance generic party advertising and get-out-the-vote drives.
Then, in 1995, the FEC concluded that parties could also use soft money to fund issue ads so long as they did not expressly advocate the election or defeat of a candidate. While in 1984, soft money only accounted for 5% (or $21.6 million) of the total spending of the two major political parties, by the year 2000, soft money accounted for 42% (or $498 million) of the two major parties' total spending. Furthermore, soft money was largely being contributed by large donors. So for instance, in 2000, 60% (or $300 million) of the soft money raised by political parties originated from only 800 donors, each of whom contributed a minimum of $120,000. Moreover, the largest of the corporate donors were giving to both parties–again raising the inference that these corporate donors were not spending money to express a particular political viewpoint but rather to gain favor with whomever was elected.
In order to deal with the large influx of soft money, the McCain-Feingold Bipartisan Campaign Reform Act prohibited political parties from raising or spending any money not subject to federal limits, thereby ending soft money at the party level.
The Act next took on the problem of issue ads by prohibiting corporations and unions from funding broadcast television or cable ads that refer to a federal candidate within 30 days of a primary or 60 days of a general election. In signing the bill into law on March 27, 2002 President Bush expressed concerns about the constitutionality of parts of the legislation but concluded: "I believe this legislation, although far from perfect, will improve the current financing system for Federal campaigns."
While the challengers to the new law were pursuing their case in the courts below, the Supreme Court, in 2003, decided FEC v. Beaumont. In Beaumont, a non-profit advocacy group, North Carolina Right to Life, Inc., sued the FEC arguing that the statute prohibiting it from making direct contributions to candidates was unconstitutional. Because Justice Thomas had begun attracting supporters on the Court to his position that contributions are no different from expenditures, this case was a timely test of where the Court stood. The group had prevailed in the Courts below: both the district court and the Fourth Circuit held the contribution limit to be unconstitutional. But the group's early run of successes was stopped short at the Supreme Court.
The Court ruled 7-2 that the ban on direct contributions by a nonprofit advocacy corporation was constitutional. In a six-Justice majority opinion authored by Justice Souter and joined by Chief Justice Rehnquist and Justices Stevens, O'Connor, Ginsburg, and Breyer, the Court held that a century of congressional efforts to curb corporations' potentially "deleterious influences on federal elections" and the Court's long line of precedents continually reasserting the difference between independent expenditures and contributions was still valid. The Court emphasized that corporations were still free to establish a PAC for the purpose of making contributions and expenditures.
The Stevens-O'Connor majority opinion also refused to extend the magic-words rule of independent expenditures established in Buckley, which had narrowed the words "relative to a clearly identifiable candidate" to only those expenditures that expressly urged the audience to "vote for," "elect," "support," "cast your ballot for," "vote against," "defeat," or "reject" a particular candidate. The Stevens-O'Connor majority believed that the phrase "refers to a clearly identified candidate for Federal office" was clear enough.
Justice Kennedy, who had previously joined Justice Thomas in Colorado 2 arguing for the overruling of Buckley with regard to political party contributions, concurred, acknowledging that the Court's precedents did treat contributions differently from independent expenditures. Justice Kennedy, however, warned: "Were we presented with a case in which the distinction between contributions and expenditures under the whole scheme of campaign finance regulation were under review, I might join Justice Thomas' opinion."
Justice Thomas, joined by Justice Scalia dissented, reasserting his belief that there should be no distinction between independent expenditures and contributions and that campaign finance laws generally were subject to strict scrutiny.
McConnell v. FEC
Six months after Beaumont, in December 2003, the Court, after being presented with a 100,000-page record to review, handed down its decision in McConnell, consisting of 278 pages of opinions. Justices Stevens and O'Connor together authored the five-Justice majority opinion joined by Justices Souter, Ginsburg and Breyer, which upheld the two key provisions of the Act concerning soft money and issue ads. The Court believed that there was ample evidence to support Congress's rationale that these provisions would prevent "both the actual corruption threatened by large financial contributions and the eroding of public confidence in the electoral process through the appearance of corruption." The Court continued: "Particularly telling is the fact that, in 1996 and 2000, more than half of the top 50 soft-money donors gave substantial sums to both major national parties, leaving room for no other conclusion but that these donors were seeking influence, or avoiding retaliation, rather than promoting any particular ideology."
The Stevens-O'Connor opinion quoted extensively from a Congressional hearing on the subject of campaign finance, including the declaration of a former Republican Senator, Warren Rudman, who served in Congress for thirteen years: "Special interests who give large amounts of soft money to political parties do in fact achieve their objectives. They do get special access. Sitting Senators and House Members have limited amounts of time, but they make time available in their schedules to meet with representatives of business and unions and wealthy individuals who gave large sums to their parties. These are not idle chit-chats about the philosophy of democracy. . . . Senators are pressed by their benefactors to introduce legislation, to amend legislation, to block legislation, and to vote on legislation in a certain way.'"
Chief Justice Rehnquist delivered another five-Justice majority opinion with regard to the other provisions of the law and upheld them as well, except for a subsection of the statute which forbade individuals "17 years old or younger" to make contributions to candidates and political parties. The Justices unanimously agreed that the provision violated the First Amendment rights of minors. It was the only language of the statute that was invalidated by the McConnell court.
Justice Scalia dissented in part, stating that money should be regarded as speech and that corporations possess full First Amendment rights. He disagreed vehemently with the idea that the wealth of corporations is a corrupting influence in the political marketplace:
In the modern world, giving the government power to exclude corporations from the political debate enables it effectively to muffle the voices that best represent the most significant segments of the economy and the most passionately held social and political views. The use of corporate wealth (like individual wealth) to speak to the electorate is unlikely to "distort" elections–especially if disclosure requirements tell the people where the speech is coming from. . . . Evil corporate (and private affluent) influences are well enough checked (so long as adequate campaign-expenditure disclosure rules exist) by the politician's fear of being portrayed as "in the pocket" of so-called moneyed interests.
Scalia's sentiments–especially his argument that disclosure requirements are all that is needed to ensure adequate safeguards–factor strongly in the Citizens United majority.
Justice Thomas disagreed with Justice Scalia regarding the efficacy of disclosure requirements. He believed them illegal and insisted that anonymous speech was encompassed by the First Amendment's protections.
Justice Kennedy, in dissent, was concerned that the Court's rationale was too vague to warrant an intrusion upon the First Amendment. In particular, he questioned the majority's equation of access to candidates in exchange for large donations to actual or apparent corruption of officeholders, stating:
Favoritism and influence are not, as the Government's theory suggests, 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. It is well understood that a substantial and legitimate reason, if not the only reason, to cast a vote for, or to make a contribution to, one candidate over another is that the candidate will respond by producing those political outcomes the supporter favors. Democracy is premised on responsiveness.
Justice Kennedy concluded that the only valid consideration was the prevention of actual quid pro quo corruption, not the act of granting meetings to major donors to discuss issues.
Wisconsin Right to Life
Four years after McConnell, the Court issued its first post-McCain-Feingold federal campaign finance opinion in FEC v. Wisconsin Right to Life, Inc. Justice O'Connor, who provided the Fifth vote in McConnell, had retired and was replaced by Justice Samuel Alito. Chief Justice Rehnquist had died and was replaced by Chief Justice Roberts. The newly structured Court considered the case of Wisconsin Right to Life, Inc., a nonprofit issue advocacy organization that had bought broadcast advertisements denouncing a group of Senators for filibustering to block federal judicial nominees and telling voters to urge Wisconsin Senators Feingold and Kohl to oppose the filibuster. Wisconsin Right to Life planned to run the ads throughout August 2004 and finance them with its general treasury funds.
Under the McCain-Feingold Act, however, it is a federal crime for any corporation to broadcast an electioneering communication (a communication that names a federal candidate for elected office) targeted to the electorate within 30 days prior to a primary or 60 days prior to an election. Recognizing that their ads would be illegal under the Act, but believing that they nonetheless had a First Amendment right to broadcast them, the organization filed suit against the FEC seeking a declaration of the statute's unconstitutionality.
In a 5-4 ruling, the Court held that the Act was unconstitutional as applied to the group's advertisement, but it once again failed to achieve a majority as to the reason why. The disagreement among the five Justices was whether to overrule the part of McConnell that upheld the portion of the McCain-Feingold Act disallowing issue ads in the weeks before an election. Chief Justice Roberts, joined by Justice Alito, argued for the narrowest position and therefore controlled the plurality. They argued that there was no reason to overrule portions of McConnell; the advertisement here did not qualify as an electioneering communication because it could reasonably be interpreted as something other than an appeal to vote for or against a specific candidate. Chief Justice Roberts explained that the ads at issue did not mention an election, candidacy, political party, or challenger, and they did not take a position on a candidate's character, qualifications, or fitness for office. Rather, they concerned a current legislative issue and urged the public to contact public officials with respect to the matter.
Justice Alito filed a separate opinion in which he stated that he would go further and return to the "magic words" rule of Buckley that would require an electioneering communication to expressly ask its audience to vote for or against a candidate in order for the ban to apply.
Justice Scalia, joined by Justices Kennedy and Thomas, stated that they would overrule McConnell as to the electioneering communications portion of the statute, returning to the magic words requirement of Buckley and would overrule Buckley's reasoning justifying contribution limits.
Justice Souter, joined by Justices Stevens, Ginsburg, and Breyer in dissent, concluded that the Court in Wisconsin Right to Life had effectively overruled McConnell and Congress's careful determination that issue ads were just as much a threat to the integrity of elections as ads using the magic words of express advocacy. Justice Souter wrote:
By the 1996 election cycle, between $135 and $150 million was being devoted to [issue] ads and because they had no magic words, they failed to trigger the limitation on union or corporate expenditures for electioneering. Experience showed, however, just what we foresaw in Buckley, that the line between "issue" broadcasts and outright electioneering was a patent fiction, as in the example of a television "issue ad" that ran during a Montana congressional race between Republican Rick Hill and Democrat Bill Yellowtail in 1996. The ad stated: "Who is Bill Yellowtail? He preaches family values but took a swing at his wife. And Yellowtail's response? He only slapped her. But ‘her nose was not broken.' He talks law and order … but is himself a convicted felon. And though he talks about protecting children, Yellowtail failed to make his own child support payments–then voted against child support enforcement. Call Bill Yellowtail. Tell him to support family values.
The Millionaires' Amendment
The next year, in Davis v. FEC, the Court heard a challenge to a provision of the McCain-Feingold Bipartisan Reform Act, known as the Millionaires' Amendment, which had not been considered in McConnell. The Millionaires' Amendment increased contribution limits that opposing candidates for the House of Representatives could receive when a self-financed House candidate spent more than $350,000 of his own money. The purpose of the law according to the government was "to reduce the natural advantage that wealthy individuals possess in campaigns for federal office."
Justice Alito, joined by Justices Roberts, Scalia, Kennedy and Thomas, struck down the Millionaires Amendment, explaining: "This Court has never upheld the constitutionality of a law that imposes different contribution limits for candidates competing against each other, and it agrees with Davis that this scheme impermissibly burdens his First Amendment right to spend his own money for campaign speech." The majority explained that Davis's First Amendment right to speak by way of spending his own money to fund his campaign would be burdened by the knowledge that if he spent more than $350,000 he would be giving an advantage to his opponents. Furthermore, Justice Alito wrote:
Different candidates have different strengths. Some are wealthy; others have wealthy supporters who are willing to make large contributions. Some are celebrities; some have the benefit of a well-known family name. Leveling electoral opportunities means making and implementing judgments about which strengths should be permitted to contribute to the outcome of an election. The Constitution, however, confers upon voters, not Congress, the power to choose the Members of the House of Representatives and it is a dangerous business for Congress to use the election laws to influence the voters' choices.
Justice Stevens, joined by Justices Souter, Ginsburg and Breyer, dissented, arguing: "It cannot be [denied] that the twin rationales at the heart of the Millionaire's Amendment–reducing the importance of wealth as a criterion for public office and countering the perception that seats in the United States Congress are available for purchase by the wealthiest bidder–are important Government interests." Three years later, in 2011, in Arizona Free Enterprise Club's Freedom Club Pac v. Bennett, the Court would invalidate a similar law in Arizona that sought to level the playing field for publicly financed candidates by giving them extra money up to a certain amount when privately financed candidates spent more money then the publicly financed candidates had received.
Six months before Davis v. FEC was decided and the Millionaires Amendment fell, a nonprofit corporation supporting conservative causes called Citizens United released a documentary critical of then-Senator Hillary Clinton, a candidate for her party's Presidential nomination. Anticipating that it would make the film, Hillary, available on cable television through video-on-demand service within 30 days of primary elections, Citizens United produced television ads to run on broadcast and cable television. Both were funded with money from the general treasuries of Citizens United. The ads painted Senator Clinton in a negative light and advertised the name of the movie and its website address.
The McCain-Feingold Bipartisan Campaign Reform Act prohibits corporations and unions from using their general treasury funds to broadcast an ad that refers to a clearly identified candidate for Federal office that is capable of being received by 50,000 or more persons in a State where a primary election is being held within 30 days. Thus, Citizens United was rightly concerned about possible civil and criminal penalties for airing the ads and documentary. Accordingly, they brought suit for declaratory and injunctive relief, arguing that the statute is unconstitutional as applied to Hillary and that the Act's disclaimer, disclosure, and reporting requirements were similarly unconstitutional as applied to Hillary and the ads. A three-judge panel of the D.C. District Court denied Citizens United's requests and granted the FEC summary judgment. By November of 2008, the case was before the Supreme Court.
After hearing oral arguments on March 24, 2009, the Supreme Court made an unusual request. They asked the parties to consider another question and prepare for another round of oral arguments on whether the Court should overrule either or both Austin and the part of McConnell which addressed the ban on electioneering communications. As noted above, in Austin, the Court upheld 6-3 an independent expenditure ban applied to a non-profit corporation with both political and nonpolitical purposes.
After reargument, the Court had reached a decision. On January 10, 2010, in a 5-4 opinion, Justice Kennedy, joined by Chief Justice Roberts and Justices Scalia, Alito and Thomas, held that the only valid rationale that satisfied the "sufficiently important governmental interest" test here is the prevention of quid pro quo corruption, but that independent expenditures do not involve dangers of such corruption. As such, the government could not ban or limit them, including 30 days before a primary and 60 days before an election. The Court stated:
By suppressing the speech of manifold corporations, both for-profit and non-profit, the Government prevents their voices and viewpoints from reaching the public and advising voters on which persons or entities are hostile to their interests. Factions will necessarily form in our Republic, but the remedy of "destroying the liberty" of some factions is "worse than the disease." Factions should be checked by permitting them all to speak and by entrusting the people to judge what is true and what is false.
Because the Court in Austin had held that interests beyond quid pro quo corruption, such as the anti-distortion rationale, were also important governmental interests, the Court overruled Austin. It also overruled the portion of McConnell that had upheld the pre-primary and pre-general election independent-expenditures ban.
The majority explained that the anti-distortion rationale of Austin was a dangerous ruling since it could allow the government to silence media companies that have amassed great wealth by assuming a corporate form. The Court further noted that the anti-distortion rationale interferes with the "open marketplace" of ideas protected by the First Amendment since it permits the Government to ban the political speech of millions of associations of citizens. The Court noted that as of 2006, over 5.8 million for-profit corporations filed tax returns and that as of 2009, more than 75% of corporations whose income is taxed under federal law have less than $1 million in receipts. Justice Kennedy noted: "This fact belies the Government's argument that the statute is justified on the ground that it prevents the ‘distorting effects of immense aggregations of wealth.' It is not even aimed at amassed wealth."
The 5-justice majority, however, became an 8-1 majority when, with only Justice Thomas dissenting, the Court proceeded to reapprove the statute's reporting and disclosure obligations even as they pertained to independent expenditures. The Bipartisan Campaign Reform Act requires any person who spends more than $10,000 on electioneering communications within a calendar year to file a disclosure statement with the FEC. That statement must identify the person making the expenditure, the amount of the expenditure, the election to which the communication was directed, and the names of and addresses of all underlying donators who contributed an aggregate amount of $1,000 or more. Citizens United had argued that these disclosure requirements would discourage donations to an organization by exposing donors to retaliation, thus chilling speech. Justice Kennedy responded, however, "To the contrary, Citizens United has been disclosing its donors for years and has identified no instance of harassment or retaliation."
In conclusion, Justice Kennedy reflected:
When word concerning the plot of the movie Mr. Smith Goes to Washington reached the circles of Government, some officials sought, by persuasion, to discourage its distribution. Some members of the public might consider Hillary to be insightful and instructive; some might find it to be neither high art nor a fair discussion on how to set the Nation's course; still others simply might suspend judgment on these points but decide to think more about issues and candidates. Those choices and assessments, however, are not for the Government to make. "The First Amendment underwrites the freedom to experiment and to create in the realm of thought and speech. Citizens must be free to use new forms, and new forums, for the expression of ideas. The civic discourse belongs to the people, and the Government may not prescribe the means used to conduct it."
Justice Stevens, joined by Justices Ginsburg, Breyer, and Sotomayor, dissented, accusing the majority of straying too far afield of the original understanding of the First Amendment in relation to corporations:
Corporate sponsors would petition the legislature, and the legislature, if amenable, would issue a charter that specified the corporation's powers and purposes and "authoritatively fixed the scope and content of corporate organization," including "the internal structure of the corporation."
Justice Stevens continued:
[Corporations] were disfavored by the founders. Unlike our colleagues, [the founders] had little trouble distinguishing corporations from human beings, and when they constitutionalized the right to free speech in the First Amendment, it was the free speech of individual Americans that they had in mind. While individuals might join together to exercise their speech rights, business corporations, at least, were plainly not seen as facilitating such associational or expressive ends. Even "the notion that business corporations could invoke the First Amendment would probably have been quite a novelty," given that "at the time, the legitimacy of every corporate activity was thought to rest entirely in a concession of the sovereign.
In support of his position, Justice Stevens quoted Thomas Jefferson: "I hope we shall . . . crush in [its] birth the aristocracy of our monied corporations which dare already to challenge our government to a trial of strength and bid defiance to the laws of our country." He also invoked the words of the first Chief Justice of the Supreme Court, John Marshall: "A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it."
However, he conceded, "In fairness, our campaign finance jurisprudence has never attended very closely to the views of the Framers whose political universe differed profoundly from that of today. We have long since held that corporations are covered by the First Amendment, and many legal scholars have long since rejected the concession theory of the corporation. But ‘historical context is usually relevant,' and in light of the Court's effort to cast itself as guardian of ancient values, it pays to remember that nothing in our constitutional history dictates today's outcome."
Justice Stevens undoubtedly had Justice Scalia in mind when he accused the majority of intellectual hypocrisy in professing to adhere to originalism, yet departing from the original understanding of the First Amendment. Justice Scalia addressed Justice Stevens's accusation in a concurring opinion:
The dissent says that when the Framers "constitutionalized the right to free speech in the First Amendment, it was the free speech of individual Americans that they had in mind." That is no doubt true. All the provisions of the Bill of Rights set forth the rights of individual men and women–not, for example, of trees or polar bears. But the individual person's right to speak includes the right to speak in association with other individual persons.
Justice Scalia argued that the associational rights included in the First Amendment certainly encompassed the right of individuals to speak together, regardless of their informal or formal–perhaps corporate–arrangements.
Justice Stevens's dissent went on to chide the majority for characterizing the statute as an all-out ban on corporate independent expenditures. To the contrary, they argued that under the Act, corporations may speak through PACs and, in the case of mom-and-pop stores, can simply place ads in their own names rather than the store's. All Citizens United would have needed to do to legally broadcast Hillary just before the primary was to refuse contributions from the general treasuries of corporations and instead use the funds from Citizens United's own PAC, which by its own account is "one of the most active conservative PACs in America."
Justice Kennedy and the majority responded to this argument:
PACs are burdensome alternatives; they are expensive to administer and subject to extensive regulations. For example, every PAC must appoint a treasurer, forward donations to the treasurer promptly, keep detailed records of the identities of the persons making donations, preserve receipts for three years, file an organization statement and report changes to this information within 10 days. And that is just the beginning. PACs must file detailed monthly reports with the FEC, which are due at different times depending on the type of election that is about to occur. These reports must contain information regarding the amount of cash on hand; the total amount of receipts, detailed by 10 different categories; the identification of each political committee and candidate's authorized or affiliated committee making contributions, and any persons making loans, providing rebates, refunds, dividends, or interest or any other offset to operating expenditures in an aggregate amount over $200; the total amount of all disbursements, detailed by 12 different categories; the names of all authorized or affiliated committees to whom expenditures aggregating over $200 have been made; persons to whom loan repayments or refunds have been made; the total sum of all contributions, operating expenses, outstanding debts and obligations, and the settlement terms of the retirement of any debt or obligation. . . . PACs have to comply with all these regulations just to speak. This might explain why fewer than 2,000 of the millions of corporations in this country have PACs. PACs, furthermore, must exist before they can speak. Given the onerous restrictions, a corporation may not be able to establish a PAC in time to make its views known regarding candidates and issues in a current campaign.
The dissent next questioned the idea of corporation as an association of individuals with a common cause and the value the majority placed on corporate political speech:
Although they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office. Because they may be managed and controlled by nonresidents, their interests may conflict in fundamental respects with the interests of eligible voters. The financial resources, legal structure, and instrumental orientation of corporations raise legitimate concerns about their role in the electoral process. . . . It is an interesting question "who" is even speaking when a business corporation places an advertisement that endorses or attacks a particular candidate. Presumably it is not the customers or employees, who typically have no say in such matters. It cannot realistically be said to be the shareholders, who tend to be far removed from the day-to-day decisions of the firm and whose political preferences may be opaque to management. Perhaps the officers or directors of the corporation have the best claim to be the ones speaking, except their fiduciary duties generally prohibit them from using corporate funds for personal ends. Some individuals associated with the corporation must make the decision to place the ad, but the idea that these individuals are thereby fostering their selfexpression or cultivating their critical faculties is fanciful. It is entirely possible that the corporation's electoral message will conflict with their personal convictions. Take away the ability to use general treasury funds for some of those ads, and no one's autonomy, dignity, or political equality has been impinged upon in the least. . . .
Corporate "domination" of electioneering can generate the impression that corporations dominate our democracy. When citizens turn on their televisions and radios before an election and hear only corporate electioneering, they may lose faith in their capacity, as citizens, to influence public policy. A Government captured by corporate interests, they may come to believe, will be neither responsive to their needs nor willing to give their views a fair hearing. The predictable result is cynicism and disenchantment: an increased perception that large spenders "‘call the tune'" and a reduced "‘willingness of voters to take part in democratic governance.'" "At bottom, the Court's opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.
The majority responded that impingement upon First Amendment rights cannot rest on a generic favoritism or influence theory but only upon a more concrete showing of quid pro quo corruption. The majority noted that the McConnell record was "over 100,000 pages" long, yet it did "not have any direct examples of votes being exchanged for . . . expenditures."
The dissent, in turn, countered:
Proving that a specific vote was exchanged for a specific expenditure has always been next to impossible: Elected officials have diverse motivations, and no one will acknowledge that he sold a vote. Yet, even if "[i]ngratiation and access … are not corruption" themselves, they are necessary prerequisites to it; they can create both the opportunity for, and the appearance of, quid pro quo arrangements. The influx of unlimited corporate money into the electoral realm also creates new opportunities for the mirror image of quid pro quo deals: threats, both explicit and implicit. Starting today, corporations with large war chests to deploy on electioneering may find democratically elected bodies becoming much more attuned to their interests. . . .
Corruption can take many forms. Bribery may be the paradigm case. But the difference between selling a vote and selling access is a matter of degree, not kind. And selling access is not qualitatively different from giving special preference to those who spent money on one's behalf. Corruption operates along a spectrum, and the majority's apparent belief that quid pro quo arrangements can be neatly demarcated from other improper influences does not accord with the theory or reality of politics.
Justice Kennedy and the majority deflected this argument as well:
The fact that speakers may have influence over or access to elected officials does not mean that these officials are corrupt: "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. Democracy is premised on responsiveness." . . . If elected officials succumb to improper influences from independent expenditures; if they surrender their best judgment; and if they put expediency before principle, then surely there is cause for concern.
Here, Justice Kennedy left open the possibility of future legislation defining independent expenditures in more detail and clarifying the lack of coordination required for it to remain independent.
Indeed, a year and a half after its decision in Citizens United, the Court issued a unanimous ruling in Nevada Commission on Ethics v. Carrigan, upholding a Nevada law that prohibited legislators from voting on a proposal or advocating its passage or failure where a conflict of interest exists. In Carrigan, an elected official on the City Council of Sparks, Nevada, voted to approve a hotel/casino project proposed by a company that used Carrigan's long-time friend and campaign manager as a paid consultant. The Nevada Commission on Ethics stated that the vote violated Nevada's Ethics in Government Law.
With only Justice Alito refusing to join the majority opinion, Justice Scalia wrote for the majority, holding that conflict-of-interest laws have a long history of validity and that a legislator has no right to claim a violation of his free speech rights in being refused the right to vote. Rather, "[a] legislator's vote is the commitment of his apportioned share of the legislature's power to the passage or defeat of a particular proposal. He casts his vote ‘as trustee for his constituents, not as a prerogative of personal power.'" Justice Alito concurred disagreeing with the premise that restrictions upon legislators' voting are not restrictions upon their speech, but agreed that conflict of interest recusal rules had a long history and "were not regarded during the founding era as impermissible restrictions on freedom of speech."
The ruling in Carrigan may be a sign of things to come. Assuming Congress will continue its nearly fifty-year legacy of attempting to limit expenditures in elections, it may pass more stringent conflict-of-interest rules requiring members of Congress to disclose conversations with major donors urging them to vote on upcoming legislation.
Given the Court's similarly broad support of disclosure requirements, Congress may also seek to enact broader disclosure requirements for independent expenditures. One such law that Congress is expected to reconsider in the coming years is the Democracy Is Strengthened by Casting Light On Spending in Elections Act (the DISCLOSE Act), which passed the House in 2010 but died in a Senate Committee. Under the law, unions, corporations, super PACs and other organizations that spend $10,000 or more on a "campaign-related disbursement" would be required to disclose their donors to the Federal Election Commission within twenty-four hours.
For the past forty years, the Court has vacillated on key issues of campaign finance reform. The Buckley Court disapproved of limits on independent expenditures, the Austin and McConnell courts approved of limits on such expenditures, and the Citizens United court again disapproved of them. While the Citizens United decision was billed as a unique and controversial decision, in fact, the views it expresses are not new. It is no more devastating an opinion for campaign finance reform proponents then Buckley v. Valeo was in its time. The Supreme Court has injected itself into campaign finance laws throughout the history of American campaign finance reform and has overturned key aspects of campaign finance laws at every stage. Nonetheless, Congress continues to respond with ever-evolving legislation, ensuring that the trend will continue.