Citizen’s United — Part 1

Now would seem as good a time as any to revisit the effects of Citizens United, particularly since the film which led to the case, supported Hillary Clinton for president in 2008.

There have been studies and reports that talk about the effects of this ruling. The New York Times has written about it here, and the National Institutes of Health released their own Public Health study here.

I’m more interested in finding out how the individual Justices think about the issue of freedom of speech and how legal precedents are adhered to or overturned. In the first of a series of posts, I will attempt to highlight the legal aspects of the case.

Justice Kennedy delivered the opinion of the Court and granted Certiorari to hear Citizens United on the basis that it limited the right to the freedom of speech, which falls under the jurisdiction of the Supreme Court as it applies to the First Amendment to the U.S. Constitution. He summarizes the hearings on Citizens United saying, “This argument proceeds on the premise that the nonprofit corporation involved here may have received only de minimis (too trivial to merit consideration) donations from for-profit corporations…” The portion of the BCRA which sets a limit on expenditures is contained in §441b. In practice, the BCRA placed a ban on corporate expenditures, but made an exception for PAC expenditures on speech that is considered electioneering communication. In a legal analysis of the BCRA, Kennedy finds that neither the Wellstone Amendment, §441b(c)(6) nor the Snowe-Jeffords Amendment, §441b(c)(2) are applicable to Citizens United since Hillary was funded by both for-profit and non-profit organizations. Therefore, Citizens United was subject to civil and criminal penalties (defined under §437g) because it received funding from for-profit corporations, and published a form of speech (aka electioneering communication) which expressly advocated for a candidate (then-Senator Hillary Clinton) within 30 days of an election. An act which was prohibited by the FECA. Kennedy’s overarching view is that government may regulate speech but it cannot suppress that speech altogether and this reasoning is reflected throughout his opinion.

As a result of Citizens United, the Court overturned, in part, legal precedent from two cases — Austin 494 U. S. 652 (1990) and McConnell 540 U. S. 93, 256 (2003). It also relied heavily on the precedent set forth in Federal Election Comm’n v. Wisconsin Right to Life, Inc., 551 U. S. 449, 490 (2007) (WRTL). In Kennedy’s opening remarks, he wrote “Austin… held that political speech may be banned based on the speaker’s corporate identity.” After deciding to overturn Austin, Kennedy states that the principle established in 1978 from Buckley and Bellotti will apply — a principle which, introduced the concept of spending money as a form of unrestricted political speech and overturned limits on campaign expenditures. So this isn’t a new issue to the Court, but it is a turn away from the three decades of careful regulations by the FEC to make elections more fair and transparent.
Kennedy explained that Federal law (before Citizens United) prohibited corporations and unions from making expenditures “for speech defined as “electioneering communication,” and that McConnell upheld those limits. It was further decided in McConnell that speech could only be restricted if it was “the functional equivalent of express advocacy” for or against a specific candidate. 540 U. S., at 206. By applying the principles from Buckley and Bellotti, the limits on expenditures in McConnell were thus overturned.

In WRTL, the Court adopted an objective “appeal to vote” test for determining whether a communication was the functional equivalent of express advocacy. In keeping with his reasoning that the government should not suppress speech, Kennedy explains that this ruling and the 11-point regulatory scheme had a practical effect which was the equivalent of Court censorship of speech. Kennedy concludes by saying, “The FEC has created a regime that allows it to select what political speech is safe for public consumption by applying ambiguous tests… This is an unprecedented governmental intervention into the realm of speech.”

The text of the First Amendment states that “Congress shall make no law… abridging the freedom of speech” Kennedy’s opinion amounts to a narrow interpretation of the First Amendment as his opinion adheres strictly to the premise that government cannot suppress speech. He goes on to cite a number of previous cases that extend First Amendment protection to corporations, which I will include in a separate blog post.

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