FACULTY VOICES: Impact of the Citizens United DecisionBy: By Michael Kang and Danieele Friedman 10L
Few U.S. Supreme Court decisions ever receive the publicity that followed Citizens United v. FEC, which was decided in January. The case received a great deal of public attention because it addressed a major question of federal campaign law and represented a number of notable firsts, including the first oral argument by Elena Kagan as solicitor general and the first case for Justice Sonia Sotomayor.
Initially some three years ago, the case presented a surprisingly mundane question of statutory interpretation—how to apply the electioneering communications provision of the Bipartisan Campaign Reform Act to video-on-demand showings of a political documentary, Hillary, the Movie.
However, on the last day of the 2008 term, the Court unexpectedly delayed its decision in the much-anticipated case. The Court instead scheduled a second round of oral arguments for the following fall and requested additional briefing on the fundamental question whether federal law prohibiting campaign advocacy by corporations was unconstitutional under the First Amendment.
The decision the Court finally handed down in January has the potential to transform campaign finance law. In Citizens United, the Court ruled unconstitutional a basic element of federal campaign finance law—longstanding prohibitions on corporate expenditures in federal elections. These prohibitions applied to expenditures by corporations from their treasury funds to pay for campaign advertisements expressly advocating the defeat or victory of federal candidates. They prevented corporations, for instance, from directly paying for the production or broadcasting of campaign advertisements with a federal election.
In earlier decisions, the Court ruled that the government could restrict such corporate expenditures because they presented a risk of political corruption. Particularly in light of the riches available to corporations from their treasuries, the government was constitutionally entitled to restrict corporate expenditures with the goal of reducing the risk that corporations might unduly influence federal officeholders by paying for expensive advertisements that would benefit their political prospects.
However, in Citizens United, the Court overruled this precedent and reasoned that corporate expenditures present no threat of political corruption and therefore their restriction by the government was unconstitutional under the First Amendment. The Court explained there was no threat of corruption because corporate independent expenditures, by definition, are made without coordination with, or any other involvement of, any federal candidate or officeholder, even if federal candidates or officeholders benefit from the expenditures.
As a result, absent the risk of this type of corruption, the Court ruled that government restriction of campaign speech, specifically the federal prohibition on corporate expenditures, is unconstitutional.
Although the immediate effect of Citizens United is surely to be increased corporate spending in elections, the decision may be more important for what it signals about the Court’s future direction on campaign finance law. Of course, the decision ignited a media firestorm regarding the potential of corporations to flood the media with influential campaign advertisements in unprecedented fashion.
However, the doctrinal impact of Citizens United is likely to be even more significant and far-reaching. Citizens United indicates the Court is likely in future cases to narrow the scope of the government’s constitutional interest in of the prevention of corruption. This narrowing would have profound consequences that extend well beyond Citizens United, because virtually all campaign finance regulation depends on this anticorruption rationale for its constitutionality.
Taken to its logical extreme, the Court’s view of corruption, as articulated by Justice Anthony Kennedy in Citizens United, may limit campaign finance restrictions not much beyond the regulation of contributions to candidates and officeholders. Indeed, Citizens United is making an immediate impact on a number of important campaign finance cases before the lower courts and may be only an early step in the transformation of campaign finance law.
In SpeechNow.org v. FEC, the first significant case taking its cue from Citizens United, the D.C. circuit struck down the routine application of federal contribution limits to independent 527 organizations that make only independent expenditures.
What is more, there is a line of cases through which the Court may dismantle other significant elements of federal campaign finance law, including soft money restrictions on political parties and 527 groups, as well as different forms of disclosure requirements.
Citizens United therefore marks a critical moment in campaign finance law. The government won nearly every major campaign finance case for more than a decade under the Rehnquist Court through McConnell v. FEC in 2003.
However, since Chief Justice William Rehnquist’s retirement, the Roberts Court has decided a series of significant campaign finance cases against the government. Citizens United signals the direction of the Roberts Court toward a larger rollback of campaign finance regulation.
Professor Michael Kang teaches Election Law, Business Associations, and Law and Democratic Governance. His research focuses on issues of voting rights, race, redistricting, campaign finance and direct democracy.
Danielle Friedman 10L is a student focused on election law. Her interests include topics related to voting rights, campaign finance and disclosure.