Citizens United v. Federal Election Commission - January 21 2010 Opinion Announcement of US Supreme Court (via Justice Kennedy)

In case 08205, Citizens United v. The FEC, Justice Kennedy has the opinion of the Court.

The Bipartisan Campaign Reform Act, which is known as BCRA, was enacted by Congress in 02/2002. And Vicra, that that act incorporates a prohibition on certain political contributions and expenditures by corporations. That prohibition is in section four forty one b of the Act. Section four forty one b prohibits corporations from making certain independent expenditures to support candidates for Federal office. For purposes of this case, the Act, prohibits, first, independent expenditures for speech in any media that expressly advocates the election or defeat of a candidate for Federal office.

And second, the act also prohibits independent expenditures that the act defines as electioneering communications. And an electioneering election, electioneering communication is any broadcast satellite or cable communication that refers to a clearly identified candidate for federal office and one that is made within either thirty days of a primary election or sixty days of a general election. This Court's opinion in McConnell v. Federal Election Commission upheld section four forty one b and other provisions of the Act against a broad facial constitutional challenge. McConnell relied upon the court's earlier decision in a case called Austin versus Michigan Chamber of Commerce.

Now this case involves a corporation that planned to broadcast a film in the year 02/2008, which was a presidential election year. The film was entitled Hillary the Movie. The film was a commentary on the career and background of then senator Hillary Clinton, who was a candidate in the presidential primaries. The corporation that made the movie and wanted to broadcast it is the appellant, in this case, Citizens United. Citizens United was concerned that the broadcast would be prohibited by the act, thus making the corporation and its responsible officials liable for criminal and civil penalties.

So the corporation sought a judicial determination that would allow it to broadcast the film. The corporation proposed to broadcast the film by video on demand. That would have allowed viewers to choose the film and then watch it on their own TV sets through cable television. And Citizens United proposed to make the movie available, through video on demand free of charge. Relying on our cases, the three judge district court rejected Citizens United constitutional challenge to section four forty one.

The trial court ruled that it would be unlawful under the act for the corporation to broadcast or promote the movie during the thirty and sixty day periods. The case came before us on appeal, and it was argued last term. This court ordered reargument to address, whether the Court should overrule either or both Austin and that part of McConnell which addresses the facial validity of section four forty one. And our opinion is announced in this session today pursuant to the statute that directs us to expedite constitutional challenges to, Bicra and and the disposition of those challenges. Citizens United and Samuamiki have made various arguments to the effect that the that corporate political speech prohibition in a four forty one b would be invalid, just as applied to the facts of this case, leaving the question of its facial validity to another day.

There is, for instance, a preliminary argument that the film is something other than the functional equivalent of express advocacy for or against the candidate so that the film should be exempt from the statutory ban under one of our presidents, Federal Election Commission versus Wisconsin Right to Life. We reject that argument. The film is quite critical of Senator Clinton. We agree with the trial court that the film is susceptible of no other interpretation than to argue to the public that that she lacked qualifications for the for office. Example of other as applied arguments are, one, since each broadcast would go to a single household, then the broadcast would not meet the statutory coverage requirement for 50,000 or more persons.

And two, another alternative argument, is that Citizens United is a nonprofit corporation and that the statute could be saved from judicial attack by interpreting the statute or really judicially rewriting it, so it does not include nonprofit corporations. We conclude that these suggestions, and some of them are made by Citizens United and some by Amici, are not sustainable under a fair reading of the statute. In addition to the difficulties of interpreting the statute in these ways, the time, expense, and uncertainty involved in case by case determination to elaborate as implied exceptions would chill political speech. So the these difficulties require us to ask if the statutory prohibition applicable to corporate political speech is constitutional as a general matter. Austin versus Michigan Chamber of Commerce, one of this court's cases, upheld a ban on corporate political speech.

And as already noted, the McConnell decision in turn relied upon Austin. We conclude that those precedents now must be reexamined. The Court has recognized that First Amendment protection extends to corporations. In accord with this principle, a pre Austin line of cases forbids restrictions on political speech based on the speaker's corporate identity. Austin was the first time in this court's history that a ban on independent expenditures by corporations for political speech was upheld.

If the First Amendment has any force, it prohibits Congress from fining or jailing citizens or associations of citizens for simply engaging in political speech. Austin and its rationale, however, however, would allow the government to ban corporations from expressing political views through any media, including media beyond those presented, here and in this case such as by printing books. Political speech is indispensable to decision making in a democracy and this is no less true because the speech comes from a corporation rather than an individual. Austin's rationale would produce the dangerous and unacceptable consequence that Congress could ban political speech of media corporations. Media corporations are now exempt from four forty one b's ban on political speech, but they amass wealth like other business corporations.

So under Austin, the government could could diminish the voice of the media business. There is no precedent for permitting this under the First Amendment. Austin interferes with the open marketplace of ideas protected by the First Amendment. Austin allows the government to ban the political speech of millions of associations of citizens, thereby silencing the voices that may best represent the most significant segments of the economy. The government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought.

This is unlawful. The first amendment confirms the freedom to think for ourselves. Our precedent is to be respected unless the most convincing of reasons demonstrates that adherence to us puts us on a course that is sure error. For the reasons just stated and others explained in some detail in the court's quite lengthy opinion, we now overrule Austin. Austin was not well reasoned, experience is undermined it, and no serious reliance interests are at stake.

We return to the principle set forth in our pre Austin line of cases that the government may not suppress political speech on the basis of the speaker's corporate identity. Without Austin, the government cannot limit corporate expenditures, corporate independent expenditures. Section four forty one b's ban on corporate independent expenditures is therefore invalid, and it cannot be applied to this film. Given our conclusion that Austin must be and is overruled, we also overruled that part of McConnell that upheld four forty one b's restrictions on corporate independent expenditures. There's a second aspect of this case.

The act has provisions for extensive disclosure. And in addition to challenging the constitutionality of the prohibition on the broadcast of the film, Citizens United argues that these provisions of BICRA are unconstitutional. We reject Citizens United's challenge to the disclaimer and disclosure provisions. Those mechanisms provide information to the electorate. The resulting transparency enables the electorate to make informed decisions and give proper weight to different speakers and different messages.

If an association offers evidence that its members will face threats or reprisals, it may be able to show that the disclaimer and disclosure requirements are unconstitutional as applied to that association. But Citizens United has offered no evidence here of threat or reprisals. The judgment of the district court is reversed with respect to the constitutionality of section four forty one's restrictions on corporate independent expenditures. It is affirmed with respect to the disclaimer and disclosure requirements. The case is remanded for further proceedings consistent with this opinion.

The chief justice has filed a concurring opinion in which justice Alito has joined. Justice Scalia has filed a concurring opinion in which justice Alito has joined and in which justice Thomas has joined in part. Justice Stevens has filed an opinion concurring in part and dissenting in part in which justices Ginsburg, Breyer, and Sotomayor have joined. Justice Thomas has filed an opinion concurring in part and dissenting in part.

I have filed a separate opinion that justice Ginsburg, justice Breyer, and justice Sotomayor have joined. We agree with part four of the court's opinion upholding the the reporting and disclosure provisions of the bipartisan bipartisan campaign reform act of 02/2002 or or BCRA. We dissent from the Court's decision to strike down a key part of that statute, section two zero three, and to and to overrule both Austin against Michigan Chamber of Commerce and a portion of McConnell against the FEC. As one of the joint authors of the opinion in McConnell, I must emphatically disagree with today's law changing decision. When Justice O'Connor and I were working on our opinion in that case, we thought that two important propositions of law were so well settled that they needed no special defense.

The first, that Congress may place special restrictions on the use of corporate funds in election campaigns had been generally recognized for a century or more. And the second, that there is a relevant distinction between corporate speech about general issues on the one hand and corporate speech specifically advad advocating the election or defeat of a can of a of a candidate on the other was not only established by our earlier cases, but had also helped shape the the extensive debates in Congress that led to the enactment of the statute. When we responded to the numerous facial chance chance challenges raised in the McConnell case, we had in front of us a record that included detailed findings by the district court judges along with literally thousands of pages of evidence from both the district court record and the proceedings before Congress. The case the Court decides today is very different. Unlike McConnell, this appeal did not come to us as a facial challenge.

The plaintiff did not dispute either of the propositions of law that I have identified, and the trial court did not take any evidence or make any findings that related to the important issues this court now decides. While the court tells us that we are asked to reconsider Austin and McConnell, it would be far more accurate for them to say, we have asked ourselves to reconsider those cases and to do so without the benefit of any evidentiary record that might shed light on the on the issues that the court addresses. While our written dissent is extremely long, this this morning, I shall summarize just five major fault flaws in the court's opinion. First, the court repeatedly declares that corporations have been banned from engaging in political speech. In reality, the expenditure limits imposed by the statute are much narrower than the Court acknowledges.

The appellant itself provides a good example. Citizens United is a wealthy nonprofit corporation that runs a political action committee or PAC with millions of dollars in assets. Under Bicra, it could have used those assets to televise and promote promote Hilary the movie wherever and whenever it wanted to. It also could have spent unlimited sun sums to broadcast the film at any time other than thirty days before the last primary election. It could have avoided regulation altogether if it had simply declined to take money from for profit corporations.

All that the parties dispute is whether Citizens United had a right to use the funds in its general treasury instead of the funds in its PAC to pay for TV broadcast during a thirty day period? There are many ways in which that question could have been answered without rewriting the law relate relating to campaign expenditures by for profit corporations and unions. The Court's second error is its assumption that the First Amendment absolutely and categorically prohibits any regulation of speech that distinguishes on the basis of a speaker's identity, including the identity as a corporation. In a variety of contexts, we have held that speech can be regulated differentially on account of the speaker's identity when speaker is understood in categorical and uninter institutional terms and when the distinctions are based on a legitimate governmental interest. The government routinely places special restrictions on the speech rights of students, prisoners, members of the armed forces, foreigners, and its own employees.

The court's new rule, however, would have accorded the propaganda broadcast to our troops by Tokyo Rose during World War two, the same threshold protection as a speech by General MacArthur. More perm pertinently, it would appear to afford the same protection to multinational corporations controlled by foreigners as to individual Americans. As Aristotle recognized in the Poetics, the identity and the incentive of a speaker are always relevant when evaluating his speech, and indeed, it is that insight that motivates the disclaimer and disclosure provisions that the court upholds today. The court's premise is particularly misguided when it is the identity of corporations that is at issue. Simply put, corporate corporations are not human beings.

In the context of an election to public office, the distinction between corporate and human speakers is significant. Corporations cannot vote or run for office. Because they may managed and controlled by nonresidents, their interests may conflict in fundamental ways with the interests of eligible voters. As the corp has court has long resembled, the distinctive legal attributes attributes of corporations create distinctive threats to the electoral process. The rule announced today that Congress must treat corporate speakers exactly like human beings in the political realm represents a radical strategy, a radical change in law.

The Court's third third error is its claim that Austin and McLean excuse me, Austin and McConnel are were aberrations on our First Amendment tradition. The court has the point exactly backwards. At the founding, Americans took it as a given that corporations could be comprehensively regulated in the service of the public welfare. They held a cautious view of corporate power and a narrow view of corporate rights, and they conceptually conceptualize speech in individualist terms. Even if we thought that the that the freedom of the speech was intended to describe any entity that could print pamphlets and newspaper briefs.

It is doubtful that the frame framers believed the freedom of speech would extend to corporations who cannot themselves engage in speech, and is even more doubtful that when they ratified the First Amendment, they thought they were laying down a principle that could be used to insulate corporations from even modest restrictions on electioneering expenditures. While the evidence from the founding is rather scarce, more recent history is crystal clear. Congress has has placed its special limitations on campaign spending by corporations ever since nineteen o seven when it responded to the rhetoric of Theodore Roosevelt and enacted the Tillman Act. It had specifically limited the independent expenditures of corporations on candidate elections ever since the Taft Hartley Act of 1947. Many States have had similar laws on the books for a comparable period of time, if not longer.

Before today, no court opinion, not one, had ever questioned the validity of these laws. To the contrary, as Justice Rehnquist Justice Rehnquist wrote for a unanimous Court in 1982, we have consistently ruled, and I am quoting, that Congress' careful legislative adjustment of the Federal electoral laws in a in a cautious advantage advance step by step to account for the particular legal and economic attributes of corporations warrants considerable deference and that it reflects a permissible assessment of the dangers imposed by those entities to the electoral process. We have unanimously concluded that these laws, and again I am quoting, reflect a permissible assumption of the dangers imposed by corporations to the electoral process, and we have accept accepted the legislative judgment that the special characteristics of the corporate structure require particularly careful regulation. In a long line of cases, we have likewise concluded that the ability to form political action committees reflects provides corporations with a constitutionally sufficient opportunity to finance electioneering, at the same time that it protects the interests of descending shareholders. Nothing has changed since 1920 that justifies a reexamination of those conclusions.

The majority rests virtually its entire doctrinal argument on two cases. Buckley against Valeo decided in 1974, and First National Bank of Boston against Valeo decided in 1988 1978. In 1975, the the bar on corporate contributions and expenditures had become such an accepted part of campaign finance regulation that when a large number of corporations challenged virtually every aspect of the 1971 Federal Campaign Act Act in Buckley, no one even bothered to argue that the bar as such was unconstitutional. And in 1970, when the court decided, Belotti, no member of the court disagreed with the express statement in justice Powell's majority opinion that our holding on corporations' right to speak on issues of general interest implied no comparable right in the quite different context of candidate elections. In light of this history, it is clear that Austin was well supported by our earlier cases.

The only novel development in Austin were the sleeping sweeping attacks on the State of Michigan's corporate expenditure restriction in dissents filed by Justices Scalia and Thomas. Those dissents planted the seeds that have flowered into the majority's stunning holding today. The court's fourth error is its assumption that there is only one governmental interest that counts in the area of campaign finance, so called quid pro quo corruption and the appearance of of such corruption. In my judgment, this crabbed approach disregards our constitutional history and the functional demands of a democratic society. On numerous occasions, we have recognized Congress' legitimate interest in preventing the money that is spent on elections from exerting undue influence on an officeholder's junk judgment and creating the appearance of such influence beyond the sphere of quid pro relationships.

Corporal corporation can take many forms, but as justice Souter has explained in more than one opinion, 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 influence does not accord with the the theory or reality of politics. It certainly does not accord with the record Congress developed in passing BCRA, a record that contained detailed findings about the corrupting consequences of corporate and union independent expenditures in the years preceding the law's passage, in which amply supported Congress' determination that the basic integrity of our political system, as well as the public's faith in that system, was in jeopardy. If there were strong evidence to show that the new law was intended or would serve to stifle political competition, then we would have reason to be skeptical of Congress' findings. But there is no such evidence, and the majority opinion never even mentions the issue.

Congress recognized in BICRA that unregulated corporate spending on elections can create threats to Republican government that are far more severe than an occasional bribe. The majority's fifth error is its assumption that enlightened self government can arise only in the absence of regulations such as section two zero three. Yet while the court's opinion is full of stirring tribunes to the virtues of free free speech, the majority fails to look closely at or, in fact, to consider at all the distinctive app attributes of corporate expenditures that dramatically change the First Amendment equation. Because corporations are not natural persons, restrictions on their electioneering pose a lesser threat to the interests of speakers. Corporate speech is a derivative speech, speech by proxy.

When a business corporation places an ad endorsing or attacking a particular candidate, it is not even clear who is speaking, given that the corporation is organized with the goal of maximizing shareholder value and must engage the electoral process with that goal in mind. Indeed, the McConnell record shows that many corporation routinely gave money to both candidates in political campaigns. Taking away the ability of a corporation to use its general treasury's funds for some of those ads, and and no one's autonomy, dig dignity, or political quality has been impinged upon in the least. So on the speaker's side of the equation, corporate expenditures are obviously and profoundly different from individual expenditures. The majority brushes past this point and declares that section two zero three offends the interests of listeners by reducing the total amount of speech.

In reaching this conclusion, the majority ignores that in numerous respects, corporate electioneering has the potential to distort public debate in ways that undermine rather than advance the interest of listeners. Unregulated corporate electioneering can drown out the voices of real people It can decrease listeners' exposure to relevant viewpoints. It can generate cynicism and disenchantment. It can chill the speech of those who hold office, and it can decrease the willingness and capacity of citizens to participate in self government. At the least, a democratically elected legislature is entitled to credit these serious and well recognized concerns.

The Court's First Amendment analysis is based on the metaphor of an open market marketplace of ideas, but the Court never actually engages with the reality of how that marketplace operates or indeed with virtually any practical concerns whatever. The court's decision is at war with the views of generations of Americans who have worked to improve our campaign spends campaign finance system and thus to to safeguard the integrity of the electoral process with the views of many of the State legislators that over many decades have enacted laws similar to the Michigan statute we upheld in Austin, with the views of the Congress that enacted the Tillman Act in nineteen o seven, the Congress that enacted the Daft Hart Daft Hartley Act in 1947, the Congress that enacted the Annette Federal Electric Campaign Act in 1971, and the Congress that enacted the Bipartisan Campaign Reform Act of 02/2022, and with the views expressed by the overwhelming majority of justices who served on this court. The majority's rejection of the long standing consents consensus on the need to limit corporate spending spend corporate campaign spending. In words justice White once used, elevates corporations to a level of level of deference, which has not been seen at least since the days when substantive due process was regularly used to invalidate regular regulatory legislation thought to unfairly impinge upon established economic interests.

At bottom, the Court's opinion is just a reject reject rejection of the common sense of the American people as expressed in nineteen o seven in the senate report on the Tillman Act, which observed observed that the evils of the evil that the evils of the use of corporate money money in connection connection within the political elections are so generally recognized that the committee deems it unnecessary to make any argument in favor of the general for for purpose of this measure. What was common sense in nineteen o seven remains common sensible common sense today. While American democracy is still imperfect, few outside the majority of this court would have thought its flaws in included a shortage of corporate money in politics.