Constitution Daily

Smart conversation from the National Constitution Center

Citizens United, one year later

January 24, 2011 by Dr. Steve Frank


Editor’s Note: Last week (Jan. 21), the Supreme Court issued a landmark decision in Citizens United v. The Federal Election Commission.  To mark the anniversary, Constitution Daily offers the following excerpt from a National Constitution Center monograph “Money Talks: Campaign Finance and the Constitution,” by John Kenneth White, Professor of Politics at Catholic University of America. In the excerpt, Dr. White explains the significance of the case.The case arose in 2008 when Citizens United, a conservative group led by long-time Republican activist David Bossie, created a movie about then-presidential candidate Hillary Clinton.  For much of 2007 leading into 2008, Clinton was a leading contender for the Democratic presidential nomination.

Long a polarizing figure, Clinton evoked the ire of conservatives–even more so as she seemed on the verge of becoming George W. Bush’s successor.  The film created by Bossie and Citizens United was entitled Hillary: The Movie and, not surprisingly, it depicted Senator Clinton in the most negative light claiming she was “steeped in sleaze.”

In January of 2008, Citizens United sought to broadcast its movie on the video-on-demand channels provided by cable service providers.  To implement its plan to air the movie, Citizens United was prepared to pay for the video-on-demand channel, and it wanted to promote the film on the cable networks in two 10-second advertisements and one 30-second advertisement.

Immediately, a problem arose as the advertisements and movie would occur 30 days prior to a primary election–thereby violating the McCain-Feingold Act which prohibited third-party groups from broadcasting advertisements that contained the words “vote for” or “vote against.”  Although the words “vote against” were not found in Hillary: The Movie, the message contained in the film was that Senator Clinton did not merit any votes in her quest to become president.  Still, Citizens United sought relief and the case quickly reached the Supreme Court.

The case

In its 5-to-4 decision, the Court sought to demonstrate that the First Amendment as conceived by the founders included the right for corporations to engage in free, unregulated speech.  By making it a felony for corporations to expressly advocate either the election or defeat of candidates (either 30 days before a primary or 60 days prior to a general election), the Court determined that this portion of McCain-Feingold violated the First Amendment and was therefore unconstitutional.  Writing for the majority, Justice Anthony Kennedy declared:  “No sufficient governmental interest justified limits on the political speech of non-profit or for-profit corporations. . . .For these reasons, political speech must prevail against laws that would suppress it, whether by design or inadvertence. . . .There is simply no support for the view that the First Amendment, as originally understood, would permit the suppression of political speech by media corporations.”  Chief Justice Roberts agreed, saying, “The First Amendment protects more than just the individual on a soapbox and the lonely pamphleteer.”

Virtually the only portion of McCain-Feingold the Court majority left intact were its disclosure requirements.  Justice Kennedy found that disclosure did not inhibit political speech, noting that “disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way.  This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.”


The majority view was countered by Justice John Paul Stevens.  In his opinion, Stevens ridiculed the majority’s view that corporations are akin to persons and are therefore subject to First Amendment protections, saying: “Corporations have no consciences, no beliefs, no feelings, no thoughts, no desires.  Corporations help structure and facilitate the activities of human beings, to be sure, and their ‘personhood’ often serves as a useful legal fiction.  But they are not themselves members of ‘We the People’ by whom and for whom our Constitution was established.”

By treating them as such, Stevens maintained that “corporations and unions will be free to spend as much general treasury money as they wish on ads that support or attack specific candidates, whereas national parties will not be able to spend a dime of soft money on ads of any kind.” Stevens concluded that the ruling “enhances the role of corporations and unions–and the narrow interests they represent–vis a vis the role of political parties–and the broad coalitions they represent–in determining who will hold public office.”


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