Citizens United v.

FEC (2010)
did this case impact personhood? if so, how? how long lasting is the effect of this?
Opinion of the Court
Justice Kennedy delivered the opinion of the Court.
(Extracts)
Federal law prohibits corporations and unions from using their general treasury funds to make independent expenditures for speech defned
as an electioneering communication or for speech expressly advocating the election or defeat of a candidate. 2 U. S. C. 441b. Limits on elec-
tioneering communications were upheld in McConnell v. Federal Election Commn , 540 U. S. 93, 203209 (2003) . The holding of McConnell
rested to a large extent on an earlier case, Austin v. Michigan Chamber of Commerce , 494 U. S. 652 (1990) . Austin had held that political speech
may be banned based on the speakers corporate identity.
In this case we are asked to reconsider Austin and, in efect, McConnell . It has been noted that Austin was a signifcant departure from
ancient First Amendment principles, Federal Election Commn v. Wisconsin Right to Life, Inc. , 551 U. S. 449, 490 (2007) (WRTL) ( Scalia , J.,
concurring in part and concurring in judgment). We agree with that conclusion and hold that stare decisis does not compel the continued accept-
ance of Austin . The Government may regulate corporate political speech through disclaimer and disclosure requirements, but it may not sup-
press that speech altogether. We turn to the case now before us.
Courts, too, are bound by the First Amendment . We must decline to draw, and then redraw, constitutional lines based on the particular media
or technology used to disseminate political speech from a particular speaker. It must be noted, moreover, that this undertaking would require
substantial litigation over an extended time, all to interpret a law that beyond doubt discloses serious First Amendment faws. The interpretive
process itself would create an inevitable, pervasive, and serious risk of chilling protected speech pending the drawing of fne distinctions that, in
the end, would themselves be questionable. First Amendment standards, however, must give the beneft of any doubt to protecting rather than
stifing speech.
Throughout the litigation, Citizens United has asserted a claim that the FEC has violated its First Amendment right to free speech. All concede
that this claim is properly before us. And [o]nce a federal claim is properly presented, a party can make any argument in support of that claim;
parties are not limited to the precise arguments they made below. Lebron , supra , at 379 (quoting Yee v. Escondido , 503 U. S. 519, 534 (1992) ;
alteration in original). Citizens Uniteds argument that Austin should be overruled is not a new claim. Lebron, 513 U. S., at 379. Rather, it isat
mosta new argument to support what has been [a] consistent claim: that [the FEC] did not accord [Citizens United] the rights it was obliged to
provide by the First Amendment .
Some members of the public might consider Hillary to be insightful and instructive; some might fnd it to be neither high art nor a fair discus-
sion on how to set the Nations course; still others simply might suspend judgment on these points but decide to think more about issues and
candidates. Those choices and assessments, however, are not for the Government to make. The First Amendment underwrites the freedom to
experiment and to create in the realm of thought and speech. Citizens must be free to use new forms, and new forums, for the expression of ideas.
The civic discourse belongs to the people, and the Government may not prescribe the means used to conduct it.
Citizens United v. FEC in plain English
Lisa McElroy - SCOTUSblog
By now, you have likely heard the news: The Supreme Court ruled yesterday that the government may not keep corporations (and probably, as Lyle reasons
in his post yesterday, labor unions) from spending money to support or denounce individual candidates in elections. While the business entities may not give
money directly to campaigns, they may seek to persuade the voting public through other means, including ads, especially where these ads were not broadcast.
Why? Because the First Amendment guarantees the right to free speech, and political spending is one form of that protected speech.
The four dissenting Justices were vocal and vociferous: They voiced the concern that allowing unfettered spending by rich corporations will allow those corpo-
rations to infuence the outcome of elections in sweeping ways. They also explained that corporations are not human beings and should not have the same free
speech rights that humans do.
As Lyle explained in his post yesterday, certain campaign fnance rules remain valid after the Courts decision. Corporations spending more than $10,000 a
year on such ads have to disclose the names of donors who supported them. And corporations must reveal who sponsored the ad. Only Justice Thomas did
not agree with these restrictions.
The case involved the now-notorious flm produced by Citizens United that sought to discredit Hillary Clintons presidential candidacy. In ruling that Citi-
zens United could not broadcast the flm, the lower court invoked a federal law (known to most of us as McCain-Feingold) which prohibited corporations from
spending money to broadcast electioneering communications within a certain number of days before an election. In other words, the law heavily restricted
corporations political speech in the form of spending, as well as the timing and forum of broadcasts. Labor unions had been similarly restrained under federal
law for over sixth years.
The timing of the decision is exquisite. With the mid-term elections coming up later this year, the decision is sure to prompt many corporations to make room
in their budgets for political spending.
Much about todays decision was not unusual: The Court was split fve-to-four, along typical ideological lines (Thomas, Roberts, Alito, Kennedy, and Scalia in
the majority, Sotomayor, Breyer, Ginsburg, and Stevens dissenting). The case made sweeping changes in federal election law, overturning previous Supreme
Court cases and clarifying language in others.
But there were quite a few things about the Citizens United announcement and opinion that were unusual.
First, the length of the opinion. Actually, there were fve opinions. Justice Kennedy wrote for the majority of fve justices, and Justice Stevens wrote for the
dissenters. Justices Scalia and Thomas and Chief Justice Roberts also fled separate opinions. But taken as a whole, this opinion was 176 pages. Unprecedent-
ed? Certainly not big cases often result in long, detailed opinions, as well as several concurrences and dissents (and some opinions, especially in campaign
fnance and death penalty cases, have even approached 300 pages). But unusual? Defnitely so. Remember that these opinions are dense, devoted to legal
analysis and citation. Reading this opinion was an all-day job, even for those in the know. And writing it? That must have been an incredibly arduous task.
At this point, it may be useful to discuss how opinions are written at the Supreme Court. You probably know that a majority opinion is authored by a single
Justice, but it stands for the opinion of the Court. Therefore, when we see Citizens United cited in the future, we wont hear people say, Justice Kennedy said .
. . Instead, they will say, The Supreme Court held. In other words, Justice Kennedy was responsible for expressing the views of the Court, not just his own.
How did he come to write the opinion? Well, the Chief Justice (who has been on the Court for less time than all but one of the Justices in the majority, Jus-
tice Alito, but is nonetheless regarded as senior to the other Justices because hes the Chief Justice) would have assigned him to do so. When the Chief is in
the majority, he assigns the opinion to another Justice in the majority (or sometimes to himself). He chooses the author of the opinion based on a number of
factors, such as whether a Justice has completed his/her workload, whether a Justice is due for his/her turn in writing an opinion (the Justices traditionally try
to spread out the load as evenly as possible), and even how likely it is that authorship will keep a Justice in the majority. When the Chief is not in the majority,
the senior justice in the majority makes the assignment.
Now, the Justices author the opinions, but they have lots of help. Every Justice is allowed to have up to four law clerks to help him/her with his opinion writ-
ing, among other tasks. Law clerks are usually recent law school graduates, most of whom were at the top of their respective classes at some of the best law
schools in the country. Some Justices ask the clerks to write a frst draft of an opinion, then give it to the Justice to revise. Some do the reverse. At least one
Justice is widely known to employ both methods, drafting his own opinions but asking the law clerks to do the same, then deciding how to combine the two.
At the very least, law clerks research the legal issues exhaustively and talk through the reasoning in an opinion with their Justice. For a case of this magnitude,
that entailed countless hours of work.
What all of this means in terms of Citizens United is that there are some mighty tired law clerks and Justices out there somewhere. This case has been a long
haul, from the cert. grant last Term to the frst argument (also last Term) to the re-argument in September to this behemoth opinion, which certainly went
through many drafts.
On to unusual detail number two. As mentioned above, this case has been going on for quite some time. In fact, it has even survived a Justice (Justice Souter,
who retired in June) and lived to see a new one (Justice Sotomayor, who took her seat on the SCOTUS bench this summer). While it does happen from time
to time that a case will be at the Court that long, it certainly does not happen often. The Justices try to conclude their work in deciding cases by late June every
year. Often, this means that we see a slew of opinions in June an exciting time for SCOTUS watchers. But in this case, the Court instead asked for re-ar-
gument this fall, meaning that they heard argument in the case twice. Why did the Court ask for the re-argument? Essentially, to address additional issues
beyond the narrow ones on which the Court originally granted cert., including whether the Court should overrule precedential cases upholding restrictions on
political spending by corporations.
Court watchers have been predicting for weeks that this decision would come down any minute. Now that we have seen the opinion, particularly the lengthy
dissent, we can understand why it took quite some time. And the truth is that the Court makes its own schedule. It takes its time to make sure that an opinion
is just right before announcing it; that makes sense, given how important the cases before the Court are and how far reaching the decisions will be.
...
Finally, unusual detail number four. Justice Stevens read his dissent (or some of it if he had read all ninety pages, wed still be in Court) from the bench.
While the author of the majority opinion will often select a key portion of that opinion to read from the bench, it is quite unusual for a dissenter to do so.
When it happens, its a sign that the dissenter feels very strongly that the Court got it wrong. Because the Court has a stake in operating as a uniform body
which is what keeps the rule of law alive, after all dissenters generally respectfully dissent, both in writing (check out the last line of almost any dissenting
opinion) and in conduct.
Dissenting Opinion
Justice Stevens, with whom Justice Ginsburg , Justice Breyer, and Justice Sotomayor join, concurring in part
and dissenting in part.
The real issue in this case concerns how, not if, the appellant may fnance its electioneering. Citizens United is a wealthy nonproft corporation that runs a
political action committee (PAC) with millions of dollars in assets. Under the Bipartisan Campaign Reform Act of 2002 (BCRA), it could have used those assets
to televise and promote Hillary: The Movie wherever and whenever it wanted to. It also could have spent unrestricted sums to broadcast Hillary at any time
other than the 30 days before the last primary election. Neither Citizens Uniteds nor any other corporations speech has been banned, ante , at 1. All that the
parties dispute is whether Citizens United had a right to use the funds in its general treasury to pay for broadcasts during the 30-day period. The notion that
the First Amendment dictates an afrmative answer to that question is, in my judgment, profoundly misguided. Even more misguided is the notion that the
Court must rewrite the law relating to campaign expenditures by for-proft corporations and unions to decide this case.
The basic premise underlying the Courts ruling is its iteration, and constant reiteration, of the proposition that the First Amendment bars regulatory dis-
tinctions based on a speakers identity, including its identity as a corporation. While that glittering generality has rhetorical appeal, it is not a correct state-
ment of the law. Nor does it tell us when a corporation may engage in electioneering that some of its shareholders oppose. It does not even resolve the specifc
question whether Citizens United may be required to fnance some of its messages with the money in its PAC. The conceit that corporations must be treated
identically to natural persons in the political sphere is not only inaccurate but also inadequate to justify the Courts disposition of this case.
In the context of election to public ofce, the distinction between corporate and human speakers is signifcant. Although they make enormous contributions
to our society, corporations are not actually members of it. They cannot vote or run for ofce. Because they may be managed and controlled by nonresidents,
their interests may confict in fundamental respects with the interests of eligible voters. The fnancial resources, legal structure, and instrumental orientation
of corporations raise legitimate concerns about their role in the electoral process. Our lawmakers have a compelling constitutional basis, if not also a demo-
cratic duty, to take measures designed to guard against the potentially deleterious efects of corporate spending in local and national races.
The majoritys approach to corporate electioneering marks a dramatic break from our past. Congress has placed special limitations on campaign spending
by corporations ever since the passage of the Tillman Act in 1907, ch. 420, 34 Stat. 864. We have unanimously concluded that this refects a permissible as-
sessment of the dangers posed by those entities to the electoral process, FEC v. National Right to Work Comm. , 459 U. S. 197, 209 (1982) (NRWC) , and have
accepted the legislative judgment that the special characteristics of the corporate structure require particularly careful regulation, id. , at 209210. The Court
today rejects a century of history when it treats the distinction between corporate and individual campaign spending as an invidious novelty born of Austin v.
Michigan Chamber of Commerce , 494 U. S. 652 (1990) . Relying largely on individual dissenting opinions, the majority blazes through our precedents, over-
ruling or disavowing a body of case law including FEC v. Wisconsin Right to Life , Inc., 551 U. S. 449 (2007) (WRTL) , McConnell v. FEC , 540 U. S. 93 (2003)
, FEC v. Beaumont , 539 U. S. 146 (2003) , FEC v. Massachusetts Citizens for Life , Inc., 479 U. S. 238 (1986) (MCFL) , NRWC , 459 U. S. 197 , and California
Medical Assn. v. FEC , 453 U. S. 182 (1981) .
In his landmark concurrence in Ashwander v. TVA , 297 U. S. 288, 346 (1936) , Justice Brandeis stressed the importance of adhering to rules the Court has
developed for its own governance when deciding constitutional questions. Because departures from those rules always enhance the risk of error, I shall
review the background of this case in some detail before explaining why the Courts analysis rests on a faulty understanding of Austin and McConnell and of
our campaign fnance jurisprudence more generally . 1 I regret the length of what follows, but the importance and novelty of the Courts opinion require a
full response. Although I concur in the Courts decision to sustain BCRAs disclosure provisions and join Part IV of its opinion, I emphatically dissent from its
principal holding.