Legal News
U.S. Supreme Court Strikes Down Corporate Spending Limits in Political Candidate Elections
Citizens United v. Federal Election Commission
Friday, January 22, 2010
"We find no basis for the proposition that, in the context of political speech, the government may impose restrictions on certain disfavored speakers," stated Justice Anthony Kennedy in the U.S. Supreme Court's 5-4 decision yesterday striking down federal limitations on corporations and unions campaign financing, and expressly overruling Rehnquist Court precedent in the process. Citizens United v. Federal Election Commission, ___ S.Ct. ___, 10 Cal. Daily Op. Serv. 776, U.S., January 21, 2010 (No. 08-205).
Citizens United is a nonprofit corporation that released a documentary critical of Hillary Clinton called "Hillary: The Movie." They intended to release the movie on video-on-demand within 30 days of primary elections, and thus sought declaratory and injunctive relief from the provisions of the Bipartisan Campaign Reform Act of 2002 (BCRA, McCain-Feingold Act) 2 U.S.C. Section 441b prohibiting corporations and unions from using general treasury funds to make independent expenditures for speech that is determined to be an "electioneering communication" or for speech expresly advocating the election or defeat of a political candidate. An "electioneering communication" is defined as "any broadcast, cable, or satellite communication" that "refers to a clearly identified candidate for Federal office," publicly distributed, and made within 30 days of a primary election. BCRA Section 434(f)(3)(A); 11 CFR Section 100.29(a)(2). In the case of a Presidential election, public distribution means that the communication "[c]an be received by 50,000 or more persons in a Satate where a primary election ... is being held within 30 days." 11 CFR Section 100.29(b)(3)(ii).
Although corporations and unions could not use funds to make such contributions under the BCRA, they could establish and fund political action committees to accomplish advocacy and electioneering communications. 2 U.S.C. Section 441b(b)(2). The premises of that law had been upheld in both McConnell v. Federal Election Commission (2003) 540 U.S. 93, 203-209 (upholding limits on electioneering communications) and Austin v. Michgan Chamber of Commerce (1990) 494 U.S. 652 (political speech may be banned based on the speaker's corporate identity). The U.S. Supreme Court held here that Section 441b's prohibition on corporate expenditures for political speech was an outright ban on public speech under the First Amendment, backed by criminal sanctions. To that extent, Austin was expressly overruled and McConnell was overruled in part. The Supreme Court held that all speakers can use money amassed from the economic marketplace to fund their speech, and differential treatment of corporations cannot be justified under the First Amendment. The limitations set forth in the BCRA, the Court held, constituted "censorship . . .vast in its reach." Although it struck down the limitations, it upheld disclaimer and disclosure requirements for advertisements, which insure that voters remain fully informed about who is speaking.
