Historical Context: Is money always a corrupting issue in the Democratic process? This is a question the United States government and its citizens has wrestled with many times throughout history. Some notable examples include the Pendleton Act of 1820… The Tillman Act of 1907 was the first federal legislation that banned corporations from giving money directly to political candidates. The Taft-Hartley Act of 1947 expanded that regulation by banning unions (labor corporations) from giving money directly to candidates. In the 1950s, unions and corporations expanded their involvement in the political process forming Political Action Committees (PACs), which attempted to influence elections and did so to a meaningful extent. In 1971, the Federal Election Campaign Act (FECA) and expanded in 1974 that placed limits on the influence of PACs by forcing them to disclose financial records and banning their ability to donate directly to candidates and their campaigns (hard money).

 

Facts of the Case: Citizens United, a conservative group, wanted to prevent BCRA from being applied to their film, Hillary: The Movie, placing regulations on the film treating it as “electioneering communications.” Section 203 of BCRA prevents corporations or labor unions from “funding such communication from their general treasuries.” Sections 201 and 311 require the disclosure of financial contributors.

• Arguments: Citizens United (the group) argued that:
  1.) Section 203 violates the First Amendment and that
  2.) Sections 201 and 203 are also unconstitutional within the context of their case.

The United States District Court denied the injunction citing that the Supreme Court had already reached that determinization in McConnel v. FEC (2003) and that the movie was indeed an “electioneering communication” as it was intended to persuade voters that Senator Clinton was “unfit for office,” and thus Section 203 was not unconstitutionally applied to their case. The US District Court reasoned that the McConnell decision recognized that disclosure of donors “might be unconstitutional if it imposed an unconstitutional burden on the freedom to associate in support of a particular cause,” but in the case of Citizen’s United it did not. The case was then taken up by the US Supreme Court…

 

Key Questions:

1) Did the Supreme Court’s decision in McConnell v. FEC (2014) resolve all constitutional as-applied challenges to the BCRA when it upheld the disclosure requirements of the statute as constitutional?

2) Do the BCRA’s disclosure requirements impose an unconstitutional burden when applied to electioneering requirements because they are protected “political speech” and not subject to regulation as “campaign speech”?

3) If a communication lacks a clear plea to vote for or against a particular candidate, is it subject to regulation under the BCRA?

4) Should a feature length documentary intended to inform/persuade voters against a political candidate be treated like the types of advertisements involved in the McConnell ruling — and therefore be subject to regulation under the BCRA?

 

Court’s Decision: In a 5-4 split decision along ideological lines, the US Supreme Court overruled Austin v. Michigan Chamber of Commerce and portions of McConnel v. FEC with the majority holding that under the First Amendment corporate funding of independent political broadcasts in candidate elections cannot be limited. The majority held that BCRA’s disclosure requirements as applied to the movie were constitutional, reasoning that disclosure is justified by a “governmental interest in providing the electorate with information about election-related spending resources.” The Court also upheld the disclosure requirements for political advertising sponsors, and it upheld the ban on direct contributions to candidates from corporations and unions.

• Dissenting Opinion: Justice Stevens argued that the Court had long recognized that to deny Congress the power to safeguard against “the improper use of money to influence the result of an election, is to deny the nation in a vital particular the power of self-protection.”
• Put simply: Citizens United v. FEC (2010) allowed for corporations to be seen as “people,” under the eyes of the law and therefore entitled them to the same political actions that you and I are entitled to. Corporations therefore have no limits placed on the amount of money they can spend contributing to political causes or parties – but the ban on them contributing directly to politicians was upheld.

 

Impact/Other Relevant Case Law:

1. 1971 Federal Election Campaign Act (FECA) and its expansion in 1974
2. Buckley v. Valeo (1976)
3. Bipartisan Campaign Finance Reform Act of 2002 (BCRA) / McCain-Feingold Act
4. McConnell v. FEC (2003)
5. McCutcheon v. FEC (2013)

 

• Potential Consequences: “Opens the flood gates” for advocacy spending in campaigns ($1.3 billion in 2012 and growing) … paves the way for Super PACs. Those who argue that Citizens United should be overturned say that the potential for corporations to sway elections or impact the democratic process is far too great given that corporations have much larger bank accounts than ordinary citizens. Those for it argue that placing limits on corporations limits their First Amendment right to free speech. For example, Senator Mitch McConnell said:
  • “For too long, some in this country have been deprived of full participation in the political process. With today’s monumental decision, the Supreme Court took an important step in the direction of restoring the First Amendment rights of these groups by ruling that the Constitution protects their right to express themselves about political candidates and issues up until Election Day. By previously denying this right, the government was picking winners and losers. Our democracy depends upon free speech, not just for some but for all.”
    • • • • • • • • • • • • • • • • • • –Senator Mitch McConnell