In Citizens United v. Federal Election Comm’n, No. 08-205 (Jan. 21, 2010), the Supreme Court invalidated as unconstitutional Section 203 of the Bipartisan Campaign Reform Act (BCRA), which prohibited corporations from funding any broadcast, cable, or satellite communication that referred to a candidate for elective office within thirty days of a primary election or sixty days of a general election. Op. 50. The Court also invalidated that portion of 2 U.S.C. § 441b, first adopted in 1947, which barred corporations from using their general treasury funds to advocate the election or defeat of a particular candidate. Id. These statutes, the Court ruled, violated the First Amendment’s Free Speech Clause insofar as they limited corporate speech based merely on the speaker’s corporate identity. According to the Court, the right to speak does not depend on the status of the speaker. In reaching this conclusion, the Court overruled Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), in which the Court had upheld the Section 441b ban on corporate expenditures in support of a particular candidate. The Court also overruled portions of its 2003 decision in McConnell v. Federal Election Comm’n, 540 U.S. 93 (2003). Justice Kennedy wrote the opinion of the Court, joined by the Chief Justice and Justices Scalia, Thomas (in part), and Alito. Justice Stevens concurred in part and dissented in part, joined by Justices Ginsburg, Breyer, and Sotomayor. Justice Thomas also dissented in part.

Background

At the center of the case was the BCRA’s ban on so-called “electioneering communications”— defined by the BCRA to include practically any broadcast communication referring to a candidate— made within thirty days of a primary election or sixty days of a general election. Petitioner Citizens United is a non-profit corporation that in January 2008 released a 90-minute “documentary” entitled, Hillary: The Movie. The purpose of the film was to persuade Democratic primary voters not to cast their ballots for Hillary Clinton. Citizens United brought suit in the U.S. District Court for the District of Columbia seeking a declaratory judgment that Hillary: The Movie did not qualify as an electioneering communication under BCRA § 203. In the alternative, Citizens United argued that Section 203 was unconstitutional as applied. The D.C. Circuit found that Section 203 did cover the film and was constitutional.

The Decision  

The Supreme Court reversed. Writing for the majority, Justice Kennedy held first that the Court had no choice but to confront the facial constitutionality of BCRA § 203—despite the fact petitioner did not bring a facial challenge. Hillary: The Movie, the Court reasoned, clearly qualified as an electioneering communication under the statute. Op. 4-10. Moreover, if BCRA § 203 was constitutional as applied to the activities of Citizens United, a nonprofit corporation, it would be constitutional in virtually all its applications. Op. 13-14. The Court also questioned whether the line between facial and as-applied challenges was a particularly bright one. Op. 14.

Turning to the merits, the Court ruled that the proper standard of review was strict scrutiny, and that Section 203 did not pass muster. Relying heavily on its earlier decisions in Buckley v. Valeo, 424 U.S. 1 (1976), and First Nat. Bank of Boston v. Bellotti, 435 U.S. 765 (1978), the Court began by reaffirming that corporations enjoy First Amendment protection. Beyond that, the Court read Buckley and Bellotti to hold that the First Amendment’s free speech guarantees are not tethered to a particular speaker’s identity. Buckley rejected statutory limits on so-called “independent expenditures”—money spent advocating a candidate’s election or defeat independent of any campaign—when made by individuals, partly on the rationale that Congress was not at liberty to curb the speech of wealthy persons simply on account of their wealth. Op. 28-29. Bellotti rejected a state-law prohibition on corporate independent expenditures related to a state referendum. According to the Court, Bellotti stands for the proposition that “the Government cannot restrict political speech based on the speaker’s corporate identity” in any circumstance. Op. 30. The Court read Buckley and Bellotti together to suggest that not only Section 203’s ban on corporate “electioneering” within certain time periods, but also the broader federal ban on corporate independent expenditures was unconstitutional. Op. 28-30.

The majority characterized the 1990 Austin decision as an outlier. In that case, the Court upheld the federal ban on independent expenditures by corporations as constitutional. But the majority described Austin as having located a compelling governmental interest in preventing the “corrosive and distorting effects of immense aggregations of wealth” accumulated through the corporate form. Op. 31. The majority rejected this logic as drastically overbroad. Political speech becomes no less valuable simply because individuals choose to associate in corporate form, the Court reasoned. Op. 33. The Court also rejected as inconsonant with prior precedent the notion that political speech can be limited based on the speaker’s wealth. Op. 34. Finally, the Court warned that Austin’s anti-distortion logic would permit the Government to regulate media corporations, including newspapers and television news networks. The Court concluded that Austin was wrong when decided and is no longer good law.

With Austin cleared away, the Court turned to consider the two other governmental interests traditionally invoked to justify limits on campaign spending—and rejected both as inadequate to justify Section 203. Buckley held that the Government had a legitimate interest in preventing corruption or its appearance. The majority reasoned that only quid pro quo corruption—money in exchange for votes—counted and there was no evidence that electioneering thirty days before a primary or independent corporate expenditures at any time fostered corruption of this sort. The Court also rejected the Government’s contention that it possessed an interest in protecting dissenting shareholders from being compelled to fund corporate speech with which they disagreed. Op. 46. The Court concluded that this rationale was under-inclusive insofar as the BCRA banned “electioneering” only within a certain time frame, and over-inclusive in that the law covered all corporations, including nonprofit and closely held corporations where the possibility of dissenting shareholders did not exist. Op. 46.

In sum, the majority concluded that [1] no legitimate governmental interest justified Section 203’s bar on electioneering thirty or sixty days before an election; and [2] no legitimate governmental interest justified 2 U.S.C § 441b’s bar on independent corporate expenditures. The Court thus invalidated both provisions, overturning Austin and that portion of McConnell that had held otherwise. Op. 50.

In contrast, the majority upheld Sections 201 and 311 of the BCRA—the disclaimer and disclosure provisions. These provisions require that any televised electioneering funded by someone other than the candidate must include a disclaimer that the candidate is not responsible for the ad; the funder or funding organization must then identify its name and address. According to the Court, such disclosure requirements do not prevent anyone from speaking, and therefore place no significant burden on First Amendment rights. Op. 51. Further, the Government has a strong interest in providing the electorate with accurate information about the source of various campaign claims. Op. 51-52.

The Dissent

Justice Stevens dissented, joined by Justices Ginsburg, Breyer, and Sotomayor. He began by sharply criticizing the Court for deciding the constitutional question at all, claiming that petitioner’s challenge was, at most, an as-applied one. Dissent 4-14. He further accused the majority of ignoring the usual rules of stare decisis in overturning, in whole or in part, two relatively recent precedents. Dissent 17-23. On the merits, Justice Stevens contested the Court’s claim that speech may not be restricted on the basis of the speaker’s identity. To the contrary, he wrote, the Government routinely restricts the speech of students, prisoners, members of the Armed Forces, foreigners, federal employees, and others—all on the basis of their identity. Dissent 29. And indeed, Justice Stevens observed that the Court has long recognized business corporations, in particular, may be regulated on the basis of their corporate status. Dissent 32-33. Justice Stevens also scored the majority for producing no evidence that any constitutional framer believed corporations would enjoy the right to free speech. And he similarly upbraided the Court for ignoring the Court’s own cases—including portions of Buckley—that distinguish between the rights of corporations and those of individuals. Dissent 45. In the dissent’s view, Section 203’s time-based ban on electioneering and Section 441b’s broader prohibition on all independent expenditures by corporations were amply justified by the Government’s interests in preventing distortion to the democratic system—a rationale he accused the majority of badly misinterpreting—preventing corruption, and protecting dissenting shareholders. Dissent 56-70, 75-89. Justice Stevens concurred in the Court’s judgment upholding the disclosure and disclaimer requirements.

Justice Thomas concurred in the Court’s judgment as to BCRA § 203 and 2 U.S.C. § 441b, but would have gone further and struck down the BCRA disclosure and disclaimer provisions as unconstitutional.

New Questions: Corporate Speech, Commercial Speech, “As-Applied” Challenges And More

Citizens United raises a series of questions likely to be played out in state and federal courts and legislatures for years to come. The Court left in place Section 441b’s ban on direct corporate contributions to candidates, and was careful to note that such a ban may be justified by an anticorruption interest. Op. 43. But by insisting so firmly that the Government may not regulate corporate speech merely because it is corporate speech, the Court undermined the central justification for the disparate rules that currently govern corporate and individual campaign contributions. Whether the direct contribution ban remains constitutionally viable thus is now an open question. The decision also raises questions about the stat

us of corporate commercial speech: Does the Court’s holding that First Amendment distinctions may not be drawn on the basis of speaker status signal that the Court is ready to afford greater protections to commercial speech? Or is the Court moving toward a more definitively hierarchical view of speech protection, in which political speech (no matter the speaker) receives maximum constitutional protection, while other forms of speech (including commercial speech) are less highly valued?

The Court’s treatment of the traditional distinction between “as-applied” and “facial” constitutional challenges may also see further litigation in contexts far broader than this: The majority expressed an unwillingness to rely too heavily on the characterization of a challenge as being as-applied if its practical impact would be felt near universally—suggesting that at least some on the Court may be moving away from this established doctrine. These are only the first of many litigable questions the decision is likely to generate.