Citizens United vs. Federal Election Commission

1. Citizens United vs. Federal Election Commission

2. Bipartisan Campaign Reform Act (BCRA) of 2002 [McCain-Feingold] • “prohibits corporations and unions from using their general treasury funds [within 30 days of a primary and 60 days of a general election] to make independent expenditures for speech that is ‘electioneering communications’, i.e. speech that expressly advocates the election or defeat of a candidate”

3. “electioneering communications” • “any broadcast, cable, or satellite communication that refers to a clearly identified candidate for federal office”

4. PACs • Corporations and unions can establish Political Action Committees for express advocacy or electioneering communications purposes

5. “Hillary-the Movie” • Citizens United had a documentary made which was critical of Hillary Clinton • The purpose of the film was “ to inform the electorate that Senator Clinton is unfit for office, that the United States would be a dangerous place in a President Hillary Clinton world and that viewers should vote against her” • Shown in theatres in 6 cities • Available on DVD and the Internet

6. The Issue • Citizens United wanted to run the film on cable and video on demand within 30 days of primary elections in 2008 and were afraid of running afoul of McCain-Feingold • They challenged the constitutionality of the law

7. In the Supreme Court • The Court held oral argument twice • In a 5-4 decision, the majority (Kennedy) overruled 2 earlier decisions that upheld restrictions on corporations and unions spending to support or oppose political candidates • Citizens United should have been allowed to engage in the speech

8. Majority Opinion (J. Kennedy) Political speech has the highest level of 1A protection. Strict scrutiny is the test to be applied if a law restricts political speech: “compelling state interest” “narrowly tailored”

9. 1A Issue • “ . . . A restriction on the amount of money a person or group can spend on political communication during a campaign . . . Necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of audience reached.” (Buckley v. Valeo)

10. “Compelling State Interest” According to Buckley v. Valeo: the compelling state interest would be quid pro quo corruption, i.e. contributions buy political favors This is lacking “Favoritism and influence are not . . . avoidable in representative politics.” even the appearance of corruption will not undermine the voters’ faith in democracy.