Earlier this year, we covered Citizens United v. FEC, a Supreme Court case on the constitutionality of federal election laws.  As we explained in April, “the Court, among other things, needs to determine whether Hillary: The Movie, a 90 minute documentary about Hillary Clinton’s presidential campaign with a decidedly conservative bias, is considered an “electioneering communication,” or a political editorial protected under the First Amendment.”

The Court, however, did not reach a decision on this issue, or any of the other issues in the case.  Instead, the Court ordered the parties involved in the case to issue new briefs focusing on whether two controlling cases in election law, Austin v. Michigan Chamber of Commerce and McConnell, et al., v. Federal Election Commission, et al., should be overturned.

The Court will return from its summer recess a couple of weeks early, and hold a special rehearing of Citizens United on September 9.

The primary issue that the Court will need to decide following this week’s hearing is the degree of influence corporations can have in funding campaigns for federal office.

In 1990, in the matter of Austin v. Michigan Chamber of Commerce, the Court decided that a Michigan law that barred corporations from using funds to support or oppose a candidate for state office was permissible.

In its 2003 in the matter of McConnell, et al., v. Federal Election Commission, et al., the Court upheld a provision of the 2002  Bipartisan Campaign Reform Act of 2002 (“BCRA”) (aka “The McCain-Feingold law”),that prohibited corporations from using their own funds to pay for advertisements that included the name of an a candidate for President or Congress.

Today’s hearing will focus on what, Lyle Deniston at SCOTUSblog describes as “‘independent spending’ on campaigns,” or in other words restrictions that forbid corporations “from using corporate money to advocate, independently of any candidate organization, the election or defeat of a candidate.”

This is a case of many layers, including the degree of influence wealthy entities, such as some large corporations, may have on the democratic process.

The important layer, for our purposes, is that layer that considers whether the law abridges free expression.  As we explained last spring, the BCRA,

includes a provision limiting the use of “electioneering communication,” which is considered any communication broadcast via television or radio, cable or satellite which refers to a candidate for federal office, within 60 days before the general election, or 30 days before the primary election.  This definition carves out an exception for communications about a specific candidate if the communication is part of a news story, commentary, or editorial that is broadcast on television or radio, cable or satellite, and is not owned or controlled by any political party, committee or candidate.

While the high Court’s hearing in March focused on the issue of whether Hillary: The Movie constituted electioneering communication for the purposes of the BCRA;  Citizens United is now arguing that the prohibition on “electioneering communication” is unconstitutional as a general matter because it “abridges speech based on its content, each of its applications is subject to strict scrutiny.”

The government counters this argument by claiming that Citizens United, as a not-for-profit corporation funded by individual donations, is not representative of the kind of for-profit corporation usually restricted by the BCRA’s prohibitions on electioneering communication, and the holdings in McConnell and Austin Solicitor General Elena Kagan, writing for the government, contends that Citizens United is not the best case to test the constitutionality of these restrictions on free expression.

The conflict between maintaining the narrowest of all possible restrictions on speech, and preventing a moneyed entity from paying to have its interests disproportionately represented come election time has lead to strange bed-fellows, including the ACLU and NRA writing friend of the court briefs in support of Citizens United.

The New York Times, editorializing on the side of government and upholding campaign finance law explains that:

If corporations are allowed to spend from their own treasuries on elections — rather than through political action committees, which take contributions from company employees — it would usher in an unprecedented age of special-interest politics. Corporations would have an enormous say in who wins federal elections. They would be able to use this influence to obtain subsidies, stimulus money and tax loopholes and to undo protections for investors, workers and consumers. It would take an extraordinarily brave member of Congress to stand up to agents of big business who then could say, quite credibly, that they would spend whatever it takes in the next election to defeat him or her.

Former Governor Eliot Spitzer, writing for Slate comes down in favor of Citizens United, succinctly explaining that:

Efforts to lower the decibel level of all the voices in public debate are flawed. The First Amendment should not be construed to create voices of equal strength: It should merely ensure that all can speak.

The Court, in reaching a decision in this case, will walk a fine line between ensuring that all can speak, and preventing voices backed by corporate wealth from drowning out the multitude of voices necessary for the democratic process.

For more information:

The NCAC blog’s prior coverage of the case



The popular press has covered this case from many angles:

Adam Liptak, New York Times

Room for Debate, New York Times

Editorial, New York Times

Eliot Spitzer, Slate

Richard L. Hasen, Slate

Emily Bazelon, XX Factor

Robert Barnes, Washington Post

Editorial, Washington Post

Associated Press

Theodore Olson (lawyer for Citizens United,) Wall Street Journal

Jess Bravin & T. W. Farnam, Wall  Street Journal

Hans von Spakovsky, Wall Street Journal

Law Blog, Wall Street Journal