Citizens United v. Federal Election Commission

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Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 130 S. Ct. 876, 175 L. Ed. 2d 753 (2010) is a Supreme Court split (5-4) decision issued in 2010 that held corporate political speech is protected under the First Amendment. In doing so it struck down sections of the 2002 McCain-Feingold federal campaign finance law, The Bipartisan Campaign Reform Act, specifically the part prohibiting corporations and unions from using their general treasury funds to make independent expenditures for "electioneering communication," or for speech expressly advocating the election or defeat of a candidate within 30 days before a primary or 60 days before a general election. It did, however, uphold the sections of the law requiring disclosure and disclaimers.

Background

The Parties

Citizens United is "a nonprofit corporation organized under the laws of Virginia and tax-exempt under section 501(c)(4) of the Internal Revenue Code."[1] It is led by David Bossie, who has served as president since 2000. [2]

The Federal Election Commission (FEC) is the agency created by Congress in 1975 to "administer and enforce the Federal Election Campaign Act (FECA) - the statute that governs the financing of federal elections. The duties of the FEC, which is an independent regulatory agency, are to disclose campaign finance information, to enforce the provisions of the law such as the limits and prohibitions on contributions, and to oversee the public funding of Presidential elections." [3]

The Law

The Bipartisan Campaign Reform Act of 2002 (H.R.2356), otherwise known as the McCain-Feingold and Shays-Meehan campaign finance reform bills, originated in 2001 with bills sponsored by Sens. John McCain (R-Ariz.) and Russ Feingold (D-Wis.) and Reps. Christopher Shays (R-Conn.) and Marty Meehan (D-Mass.), respectively. The purpose of the act was to ban "soft money" from being contributed to candidates and political parties. It also prohibited the airing of "non-partisan" issue ads funded by soft money in days leading up to elections, among other things. President George W. Bush signed the act into law on March 27, 2002.

Section 201 of BCRA contains a donor disclosure provision for electioneering communications. Persons who disburse an aggregate of $10,000 or more a year for the production and airing of electioneering communications are required to file a statement with the Federal Election Commission (FEC). The statement must include the names and addresses of persons who have contributed in excess of $1,000 to accounts funding the communication.

Section 203 of BCRA regulates the purchase of “electioneering communications.” Generally, these are “broadcast, cable, or satellite” communications made within 60 days of a general election or 30 days of a primary election. Section 203 restricts corporations and labor unions from funding electioneering communications from their general funds except under certain specific circumstances, e.g., get-out-the-vote campaigns. Permissible “electioneering communications” are subject to BCRA’s disclosure and disclaimer requirements under sections 201 and 311.[4]

The Case

Citizens United filed for an injunction against the FEC to prevent it from enforcing the BCRA with respect to its film "Hillary: The Movie", which was critical of presidential candidate Hillary Clinton. It wanted to air the film and advertisements for the film around the time of the 2008 presidential primary. The District Court denied the injunction. The district court held that Section 203 was constitutional relying on the Supreme Court's ruling in McConnell v. FEC. It also held that The Movie was the functional equivalent of express advocacy, because it attempted to inform voters that Senator Hillary Clinton was unfit for office. It also held that Sections 201 and 203 were not unconstitutional as applied to the The Movie or its advertisements.[5] The Supreme Court granted certiorari to hear the case

The Supreme Court overruled two of its prior decisions- Austin v. Michigan Chamber of Commerce and portions of McConnell v. FEC holding that the First Amendment bars the limitation of corporate funding of independent political broadcasts in candidate elections. But the Court upheld the BCRA's disclosure requirements and the ban on direct contributions to candidates from corporations and unions. [6]

Communities push back against Citizens United

Sixteen states and 500+ local communities have passed statewide referenda, legislative resolutions, or formal letters calling for an amendment to the constitution to overturn Citizens United v. Federal Election Commission.[7]

Statewide Resolutions against Citizens United

Statewide Ballot Initiatives

Two states passed ballot referenda in 2012.

Colorado Amendment 65: In Colorado, 73.7% of voters supported Amendment 65.[8] According to the Colorado State Ballot Information Booklet, Amendment 65 would "instruct the Colorado congressional delegation to propose and support an amendment to the U.S. Constitution that allows Congress and the states to limit campaign contributions and spending; and‚ instruct the state legislature to ratify any such amendment passed by Congress." [9] Organizations campaigning for Amendment 65 included Colorado Common Cause[10],Colorado Public Interest Research Group,[11] Coloradans Get Big Money Out of Politics and the Fair Share Committee to Get Big Money Out of Politics.[12]

Montana I-166: Montana Ballot Initiative 166 called on state officials to work towards a national constitutional amendment overturning Citizens United v. FEC and to ratify such an amendment if passed by the US Congress.[13] I-166 was included on the general election ballot for November 6, 2012. It passed by a wide margin, with 74.67% of voters in favor.[14] In December 2013, Montana district judge Kathy Seeley declared several parts of I-166 unconstitutional. According to The Missoulian, Seeley argued that "The initiative language dictates the action required and the votes to be cast [...] In essence, therefore, it predetermines actions and takes from public officials the freedom to vote as they see fit. These constraints, as well as the criminal liability for violation of the provisions, are not insignificant."[15] Seeley upheld parts of the amendment asking state officials to "advance the policy that corporations are not human beings with constitutional rights" and to act "whenever possible" to limit corporate campaign donations.[15]

State Legislative Resolutions

States that passed legislative resolutions, as of June 2014:[16]

Oregon (HJM 6), passed July 4, 2013: "a resolution introduced by State Senators Jackie Dingelder and Alan Bates and State Representative Michael Dembrow, respectfully urging "the Congress of the United States of America to propose and send to the states for ratification an amendment to the United States Constitution consistent with the findings of this memorial, clarifying the distinction between the rights of natural persons and the rights of corporations... [and] clarify that Congress and state legislatures may regulate moneys raised and spent for political purposes, including moneys raised by individuals, corporations and associations.""[16]

Illinois (SJR 27): "a joint resolution introduced by State Senators Heather Steans, Karen McConnaughay and Pamela J. Althoff on March 13, 2013, passed the Senate on May 14, 2013 and the House on May 31, 2013. The resolution calls “upon the United States Congress to propose and send to the states for ratification a constitutional amendment to overturn Citizens United v. FEC, SpeechNow.org v. FEC, Buckley v. Valeo, and other related cases that allow for unlimited election spending; and ... that such an amendment should make clear that the rights of persons protected by the Constitution are the rights of natural persons and not those of corporations or other artificial entities.”"[16]

Maine (SP 548), passed April 30, 2013: "introduced by State Senator Dick Woodybury [...] The joint resolution declares Maine's support "for an amendment to the United States Constitution regarding campaign finance that would reaffirm the power of citizens through their government to regulate the raising and spending of money in elections.""[16]

West Virginia (SR 24 and HR 9): "SR 24, introduced by Senator Herb Snyder, passed in the Senate on April 10, 2013. HR 9, introduced by Delegate Meshea Poore, passed in the House of Delegates on March 28, 2013. These companion resolutions call upon Congress to propose an amendment "to establish that corporations and unions are not entitled to the same rights and protections as natural persons under the Constitution" and that "such an amendment should assure the power of the federal, state and local governments to limit, regulate and require disclosure of sources of all money spent to influence elections.""[16]

New Jersey (SR 47 and AR 86): "SR 47, introduced by State Senator Jeff Van Drew, passed in the Senate on October 4, 2012. AR 86, introduced by State Representative Herb Conway, passed in the Assembly on October 18th, 2012 by a roll call vote. The companion bills "expresses strong opposition to the United States Supreme Court ruling in Citizens United v. Federal Elections Commission and calls upon the Congress of the United States to propose an amendment to the United States Constitution to provide that with regard to corporation campaign spending, a person means only a natural person for First Amendment protection of free speech"."[16]

Massachusetts (S772): "introduced by State Senator Jamie Eldridge, passed the Senate on July 26, 2012, and the House on July 31, 2012. The resolution called for action to "restore the First Amendment and fair elections to the people.""[16]

California (AJR 22): "introduced on March 20, 2012 by Assemblyman Weikowski, passed in the California State Assembly in March and in the Senate in July. AJR 22 "calls upon the United States Congress to propose and send to the states for ratification a constitutional amendment to overturn Citizens United v. Federal Election Commission and to restore constitutional rights and fair elections to the people.""[16]

Rhode Island (H7899 and S2656): "H7899 was introduced by Speaker of the House Gordon Fox and passed on May 8th, 2012. S2656 was introduced by State Senate President Teresa Paiva-Weed and passed on May 24, 2012. Governor Lincoln Chafee signed the joint resolutions on May 30, 2012. The companion bills respectfully urge "the Congress of the United States to pass and send to the states for ratification an amendment to the constitution to effectively overturn the holding of Citizens United and its progeny and to permit the governments of the United States and the several states to regulate and restrict independent political expenditures by corporations and wealthy individuals.""[16]

Vermont (JRS 11): "introduced January 21, 2011 by Senator Virginia Lyons (D-Chittendon), passed in the Senate on April 12, 2012 and passed in the House on April 19, 2012. On behalf of the Vermont Legislature, JRS 11 "expresses its disagreement with the holdings of the U.S. Supreme Court in Buckley and in Citizens United that money is speech" and "urges Congress to consider the request of many Vermont cities and towns to propose a U.S. constitutional amendment for the state's consideration that provides that money is not speech and corporations are not persons under the U.S. Constitution and that also affirms the constitutional rights of natural persons.""[16]

New Mexico (HM4 and SM3): "HM 4, introduced by Representative Stewart, passed in a 38-29 vote in the House on January 30, 2012. SM 3, introduced by Senator Fischmann, passed in a 20-9 vote in the Senate on February 7, 2012. The companion bills "express strong opposition to the United States supreme court's decision in Citizens United v. Federal Election Commission and call upon the United States congress to propose and send to the states for ratification an amendment to the United States constitution to restore republican democracy to the people of the United States.""[16]

Hawaii (HCR 282): "introduced on March 10, 2010 by Rep. Bob Herkes (D-5), passed the House on April 9, 2012 and the Senate on April 28, 2012. Through HCR 282, the State of Hawaii "respectfully requests that the U.S. Congress propose and send to the states for ratification a constitutional amendment to clarify the distinction between the rights of natural persons and the rights of corporations, thereby preserving the power of Congress and the States to place limits on the ability of corporations to influence the outcome of elections through political expenditures.""[16]

Formal letter signed by majority of state legislature

Delaware: "On June 10, 2013, the majority of the House and Senate of the Delaware General Assembly sent a letter to Delaware’s congressional delegation calling to overturn Citizens United and related cases, and stating that “the United States of America’s elections should not be permitted to go to the highest bidder.” The Delaware General Assembly expressed “we sharply disagree with the … decision” and call for an amendment “that makes clear the right of our elected representatives and the American people to be steadfast in pursuit of fair elections and democratic sovereignty.”"[16]

Connecticut: "On September 12, 2012, 88 state representatives and 22 state senators signed a letter calling for a constitutional amendment to overturn Citizens United v. FEC. The effort to gather signatures was initiated by State Senator Gayle Slossberg."[16]

Maryland: "On January 19, 2012, State Senator Jamie Raskin introduced a letter to the Maryland General Assembly. The letter concluded with the following: "Article V of the United States Constitution empowers the people, the states and the Congress to use the constitutional amending process to protect republican self-government. This power has repeatedly been used by the people when the Supreme Court has undermined the progress of popular democracy. As Members of the Maryland General Assembly, we sharply disagree with the majority decision in Citizens United v. Federal Election Commission and call upon the United States Congress to propose and send to the states for ratification as soon as is practicable a constitutional amendment to reverse this decision and restore fair elections and democratic sovereignty to the states and to the people." The majority of members in the House of Delegates and State Senate signed the letter in agreement."[16]

Local Resolutions and Ballot Initiatives

500+ communities in 33 states have expressed support for a constitutional amendment to overturn the Citizens United decision, including Los Angeles, Washington, DC., Chicago, and New York City.[16] Many communities have voted overwhelmingly in favor of such an amendment, including 89% of voters in Salt Lake City, 74% of voters in Chicago, and 77% of voters in Los Angeles county.[16]

Senate Judiciary Committee Hearing on Constitutional Amendment

On June 3, 2014, the Senate Judiciary Committee held a hearing on SJR 19, which proposes a constitutional amendment "that would give Congress and the states the ability to regulate political spending by outside groups."[17] SJR 19 was proposed in June 2013 by Sen. Tom Udall (D-NM)[18] and had the support of 43 Senators as of June 2014.[19] According to reporting by PR Watch, the level of grassroots support for an amendment was noted at the hearing: "In advance of the hearing, two million people signed petitions supporting an amendment, which Senator Patrick Leahy (D-Vt.) called a “tangible reminder that Americans are calling on Congress to act.""[20]

Senate Debates Constitutional Amendment

On September 8, 2014 the Senate voted 72-18 to advance the amendment, meaning it would be debated before a final vote. Many Republicans voted to advance the bill, highlighting the sensitivity of an issue that has widespread support among grassroots Democrats and Republicans during an election year. While support in Congress is about split along party lines, polling by the Democracy Corps found "overwhelming cross-partisan support (73 percent) for a constitutional amendment to overturn Citizens United."[21]

Articles & Resources

Related SourceWatch Articles

PRWatch Articles

External Articles

Online Resources

References

  1. Declaration of Michael Boos, on Behalf of Plaintiffs Citizens United and Citizens United Political Victory Fund, Congressman Ron Paul, et al., Plaintiffs, vs. Federal Election Commission, et al., Defendants, Civil Action No. 02-CV-781, U.S. District Court for the District of Columbia, October 3, 2002.
  2. Who We Are, Citizensunited.org, Organizational Website, Accessed June 25, 2013.
  3. About the FEC, fec.gov, Government Website, Accessed June 25, 2013.
  4. Library of Congress, Citizens United v. FEC and the Future of Federal Campaign Finance Reform, loc.gov, governmental website, Accessed June 26, 2013.
  5. Memorandum Opinion Citizens United v. Federal Election Com'n, UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA.
  6. Citizens United v. Federal Election Commission, 588 U.S. 310 (2010).
  7. John Nichols, "Four Years After Citizens United," The Nation, January 21, 2014.
  8. Denver Post, Colorado Amendment 2012 Election Results, November 6, 2012. Accessed May 27, 2014.
  9. Legislative Council of the Colorado General Assembly, 2012 State Ballot Information Booklet, September 10, 2012. Accessed May 27, 2014.
  10. Colorado Common Cause, Money in Politics, Accessed May 27, 2014.
  11. Colorado Public Interest Research Group, Reclaiming Our Democracy, Accessed May 27, 2014.
  12. Charles Trowbridge, "Amendment 65: Limit election campaign contributions and spending," Rocky Mountain PBS INews, September 18, 2012. Accessed May 27, 2014.
  13. Stand With Montanans, "Initiative Language." Accessed May 27, 2014.
  14. Ballotpedia.org, "Montana Corporate Contributions Initiative, I-166 (2012)." Accessed May 27, 2014.
  15. 15.0 15.1 Charles S. Johnson, Judge strikes part of Montana ballot measure on Citizens United," The Missoulian, December 23, 2013. Accessed May 27, 2014.
  16. 16.00 16.01 16.02 16.03 16.04 16.05 16.06 16.07 16.08 16.09 16.10 16.11 16.12 16.13 16.14 16.15 16.16 United for the People, Local and State Resolutions, accessed June 5, 2014.
  17. Ashley Parker, "Reid and McConnell Duel Over Proposed Amendment on Campaign Spending," New York Times, June 3, 2014. Accessed June 9, 2014.
  18. Senate Joint Resolution 19, Senate Committee on the Judiciary, June 18, 2013. Accessed June 9, 2014.
  19. People for the American Way, " 43 Senators Support Amendment Strategy to Get Money Out of Elections," June 4, 2014. Accessed June 9, 2014.
  20. Brendan Fischer, "Democracy Movement Leads Push for Democracy Amendment," PR Watch, June 9, 2014. Accessed June 9, 2014.
  21. Brendan Fischer, "Historic Debate: Senate Advances Constitutional Amendment to Overturn Citizens United," Center for Media and Democracy, PR Watch, September 9, 2014. Accessed September 9, 2014.