Rubin 1

Alex Rubin
BUS 371
Professor Hildebrand
Citizens United v. Federal Election Commission Brief
19 February 2016

Citizens United v. Federal Election Commission

Rubin 2
The Citizens United v. Federal Election Commission case is a famous United States
Supreme court case that is centered on issues such as restrictions on corporate funding, political
express advocacy, and electioneering communications just to name a few. The case first went
through the District court of Columbia and was appealed to the U.S. Supreme Court while
referencing and utilizing several amendments, acts, and previous cases concerning U.S.
constitutional law along the way. The decision of this case references and relies on the first and
the fourth amendments of the U.S. constitution as well as the Bipartisan Campaign Reform Act,
the Federal Elections Campaign Act Amendments of 1974, and other famous cases such as,
Austin v. Michigan Chamber of Commerce, McConnell v. Federal Election Commission, Buckley
v. Valeo, and First National Bank of Boston v. Bellotti.
The ruling of the case was decided on January 21, 2010 in favor of Federal Election
Commission. This was a five to four majority opinion made among several senior and chief
justices in the U.S. Supreme Court. The most prominent U.S. Supreme court justices involved in
this case were chief justice John G. Roberts, and associate justices, John P. Stevens, Anthony
Kennedy, Sonia Sotomayor, and Samuel Alito. The majority opinion was made primarily by
Kennedy. Later on, through concurrences and dissenting opinions, Roberts, Alito, Stevents, and
Sotomayor joined the majority opinion.
The appellant, Citizens United, is a United States non-profit organization with a firm
mission to restore full democracy in the U.S., to limit government control, and to instill the main
characteristics of free enterprise. The organization also creates films, television advertisements,
and documentaries concerning the issues that they wish to resolve. The appellee, Federal
Election Commission, is an agency created by the United States congress whose purpose is to
regulate and control funding for candidate campaigns in the U.S. in addition to enforcing
prohibitions on contributions and keeping an eye on public funding for presidential campaigns1.
In 2007, Citizens United formed the basis of this case by first filing a complaint against Federal
Election Commission within the U.S. District court for the district of Columbia. The complaint

1 Supreme Court of the United States Brief: Citizens United v. Federal Election Commission.

Washington, DC: American Bar Association. Print.

Rubin 3
was directed towards the release of Michael Moores film Fahrenheit 9/11. The subject matter of
the film was directed towards the response of the George W. Bush administration to the 9/11
terrorist attacks on the World Trade Center. Citizens United claimed that the film contained
subject matter that could be considered political advertising and therefore violated the
Bipartisan Campaign Reform Act of 2002. This act created a federal law that amended the
Federal Election Campaign Act of 1971 that regulated the funding of election campaigns.
The Bipartisan Campaign Reform Act of 2002 does not allow for any television
advertisements or commercials that are directly or indirectly in favor of a certain presidential
candidate to be broadcasted thirty days before a primary election or sixty days before a general
election. The reason is that these advertisements are made with financial support of the
corporation that created the ad. In other words, the Bipartisan Campaign Reform Act of 2002
prohibits any electioneering communications from being aired thirty days before a primary
election and sixty days before a general election. Electioneering communications can be defined
as any broadcasted media advertisements such as television commercials that mention a
presidential candidate and are directed towards voters with the thirty and sixty day periods23.
This complaint was then dismissed by the Federal Election Commission due to a lack of
reasonable evidence of candidate advertising in the film. Citizens united filed a second
complaint stating that Fahrenheit 9/11 displayed the defeat of George W. Bush which was
interpreted as a contribution to other presidential candidates with the use of corporate
expenditures which would be illegal according to the Federal Elections Campaign Act
Amendments of 1974. These amendments limited the contributions made to specific

2 "Campaign Finance Law Quick Reference for Reporters." Federal Election Commission.

Federal Election Commission, Oct. 2006. Web. 24 Apr. 2016.

<http://www.fec.gov/press/bkgnd/bcra_overview.shtml>.
3 "Electioneering Communications Reports." Electioneering Communications Reports. Federal

Election Commission, n.d. Web. 24 Apr. 2016.

<http://www.fec.gov/finance/disclosure/ec_table.shtml>.

Rubin 4
presidential candidates and parties. It also imposed corporate spending limits on independent
spending as well as expenditures for congressional candidates4.
The Federal Election Commission dismissed this second complaint as well by referencing the
famous Buckley v. Valeo case. This 1976 case established the unconstitutionality of these
corporate spending restrictions. It was found by the Federal Election Commission that
Fahrenheit 9/11 did not display a corporate expenditure and only served a commercial purpose
unrelated to presidential candidate contributions which would be illegal under the Federal
Election Campaign Act5.
As a response to this, Citizens United continued to create commercials, films, and
documentaries. What caused most controversy, was the commercials that Citizens United
wanted to air to promote their newest film titled, Hillary: The Movie. The film had obvious
biased opinions toward the presidential candidate at the time, Hillary Clinton. The district court
of the Columbia district categorized it as an extended advertisement with intentions of
contributions to the other candidates and would be in violation of the Bipartisan Campaign
Reform Act.
It would violate this act not only because of its subject matter that was critical of Hillary
Clinton, but also due to the fact that the advertisements would be aired within the thirty-day
primary election period and the sixty-day general election period laid out by the Bipartisan
Campaign Reform Act. The district court for the district of Columbia upheld that the BCRA
would not allow such a film to be advertised. The U.S. Supreme Court would later oppose and
reverse this decision by overruling the previous and famous cases of Austin v. Michigan
Chamber of Commerce and McConnell v. Federal Election Commission6.

4 "Federal Law." The Campaign Finance Institute. The Campaign Finance Institute, 2015. Web.

24 Apr. 2016. <http://www.cfinst.org/law/federal.aspx>.

5 "Buckley v. Valeo." Oyez. Chicago-Kent College of Law at Illinois Tech, n.d. Apr 24, 2016.

<https://www.oyez.org/cases/1975/75-436>

Rubin 5
The main argument made by Citizens United was that it would be unconstitutional to limit the
corporate funding for the film, Hillary: The Movie. Citizens United stated argued that these
restrictions on the funding for these electioneering communications were unconstitutional and
decided to sue the Federal Election Commission for enforcing these regulations. They used the
famous Federal Election Commission v. Wisconsin Right to Life, Inc. case to support their
argument. The Federal Election Commission v. Wisconsin Right to Life, Inc. case was a U.S.
Supreme Court case pertaining to the Bipartisan Campaign Reform Act. The Federal Election
Commission was sued by Wisconsin Right to Life, Inc. because it was found that the BCRAs
prohibitions on corporate funding for political ads was unconstitutional7.
During this case, the famous Supreme Court case, McConnell v. Federal Election Commission
was also referred to. In this case, the Supreme Court supported the U.S. congresss ability to
control political advertisements that would fall under the classification of express advocacy.
Wisconsin Right to Life, Inc. explained that their advertisements were to be considered issue
advocacy rather than express advocacy. Issue advocacy is advertising with the intention of
raising awareness for a common issue whereas express advocacy is advertising with the intention
to express a favored presidential candidate. Most of the time, express advocacy advertisements
are in favor of a candidate or points out the flaws in an unfavored candidate8.
In addition, Wisconsin Right to Life, Inc. justified its argument even more by pointing out a lack
of compelling government interest. It was reasoned that there was not reasonable amount of
government interest in the case to be able to ignore the main rights of the first amendment of the
constitution. The Federal Election Commission attempted to make a counterclaim that the
6 Supreme Court of the United States Brief: Citizens United v. Federal Election Commission.

Washington, DC: American Bar Association. Print.

7 "Federal Election Commission v. Wisconsin Right to Life, Inc.." Oyez. Chicago-Kent College

of Law at Illinois Tech, n.d. Apr 24, 2016. <https://www.oyez.org/cases/2006/06-969>

8 Supreme Court of the United States Brief: Citizens United v. Federal Election Commission.

Washington, DC: American Bar Association. Print.

Rubin 6
advertisements presented by Wisconsin Right to Life, Inc. pointed out flaws in some of the
presidential candidates and therefore swayed the election results. The Supreme Court declined
the counter argument and needless to say, the Federal Election Commission lost.
Returning to the case at hand, in 2008, Citizens United requested a preliminary injunction
which was denied by the district court. It was denied because the court foresaw a lack of success
in the case due to a clearly evident bias against presidential candidate, Hillary Clinton and
therefore displayed express advocacy which would violate the Bipartisan Campaign Reform Act
and would not allow for an exception in the restrictions for corporate campaign funding for
electioneering communications that the act lays out. Later in the year of 2008, the Federal
Election Commission was given summary judgement by the district court. Citizens United
considered the Bipartisan Campaign Reform Act in depth and appealed to the Supreme Court
which then lead to a granted certiorari. A certiorari is an order that grants permission for higher
court level to assess a lower courts decision. This certiorari would then take place on November
14, 2008. The case was docketed until then9.
Malcom L. Stewart who was representing the Federal Election Commission at the time tried to
sway the courts decision by referencing the Austin v. Michigan Chamber of Commerce case.
This famous Supreme Court case led to the making of law that would help regulate corporate
expenditures for political advertisements in order to bypass any evidence of corruption with our
government. An act called the Michigan Campaign Finance Act did not allow independent
funding for electioneering communications to be supported by corporate treasury money. There
was an exception to this act. This exception was that corporations could spend their treasury
money as long as it was being used through a separate independent fund used for political
purposes only. Stewart used the result of this case to claim that the government would have to
erase any media that explicitly displayed favor for a certain presidential candidate10.

9 Clarkson, Kenneth W., and Roger LeRoy Miller. Business Law. 13th ed. Boston: Cengage

Learning, 2014. Print.

10 "Austin v. Michigan Chamber of Commerce." Oyez. Chicago-Kent College of Law at Illinois

Tech, n.d. Apr 24, 2016. <https://www.oyez.org/cases/1989/88-1569>

Rubin 7
The chief justice, John Roberts and the associate justices of the case had a meeting to discuss the
previously stated concerns. The result of the initial meeting was a five to four decision in favor
of Citizens United being able to show Hillary: The Movie. under the Bipartisan Campaign
Reform Act. After this initial decision was made, other associate justices developed dissenting
opinions claiming that the majority justices did not examine the issue enough. Judge Kennedy
was the main justice behind the minority and was able to get chief justice judge Roberts to hold a
second meeting to reevaluate the situation. Later, Kennedys concurrence became the majority
opinion over Roberts original decision. This was aided by a dissenting opinion written by
associate judge David Souter. The dissenting opinion explained judge Roberts manipulative
intentions toward the U.S. Supreme Court. It was stated that Roberts only made the decision he
made to satisfy his own desired outcome. Frightened that Souters opinion would be detrimental
to the Supreme Courts reputation, judge Roberts scheduled a second meeting to discuss and
argue the case again with the minority.
Later in 2009, the second meeting to reevaluate the case was completely dependent on
the McConnell v. Federal Election Commission case. It was agreed that the court must decide to
either abide by the final decision of this case or overrule it. The decision would then lead to the
final decision of the Citizens United v. Federal Election Commission case. During this meeting,
associate judge Stevens mentioned that in his dissenting opinion prior to the motion for summary
judgement that Citizens United did not follow through with its facial challenge directed towards
the Bipartisan Campaign Reform Act due to parties being in favor of opposing the argument. A
facial challenge is when a party challenges the constitutionality of statute with intention of
proving its violability11.
Justice Kennedy made the majority opinion in favor of Citizens United and the court overruled
the decisions made from the previous Supreme Court cases, Austin v. Michigan Chamber of
Commerce (which did not allow corporate treasury spending for biased campaign
advertisements) and McConnell v. Federal Election Commission (which supported the Bipartisan

11 Supreme Court of the United States Brief: Citizens United v. Federal Election Commission.

Washington, DC: American Bar Association. Print.

Rubin 8
Campaign Reform Act and its limitations on corporate funding for express advocacy within
candidate advertisements)12. Judge Kennedy concluded that under the rights of the first
amendment of the constitution, that the restrictions and limitations laid out by the Bipartisan
Campaign Reform Act prohibiting corporate funding for electioneering communications are
illegal. The argument was also made that the first amendment does not make a distinction
between corporations and other mediums for advertising such as newspapers, magazines,
television shows, etc13.
The main support for the majoritys opinion was that the first amendment states that it protects
the rights of associations of individuals. Corporations were then interpreted as associations of
individuals which allowed them to be protected under the first amendment and would allow them
to endlessly spend corporate funds on electioneering communications with the intent to sway
voters choices. It was made clear by the Buckley v. Valeo case that placing restrictions on
corporations spending for funding political campaign advertisements was a direct violation of the
first amendment of free speech because this would limit the corporations ability to speak about
their political views. It was also stated that the government legislation did not have the right or
power to attempt to create a fair environment for large corporations and individual people by
restriction the corporations speech.
The U.S. Supreme Courts final decision banked intensely on the final decision of the
First National Bank of Boston v. Bellotti case. This was a famous Supreme Court case that
declared that corporations should have free speech just like individual people. The courts ruling
was a reaction to a Massachusetts state law that did not allow corporations to give money in
order to help ballot initiatives with the exception of corporations that were intimately associated
with them. In this case, the large corporations were forbidden from making contributions to a
12 "Austin v. Michigan Chamber of Commerce." Oyez. Chicago-Kent College of Law at Illinois

Tech, n.d. Apr 24, 2016. <https://www.oyez.org/cases/1989/88-1569>

13 Supreme Court of the United States Brief: Citizens United v. Federal Election Commission.

Washington, DC: American Bar Association. Print.

Rubin 9
Massachusetts tax policy. Once the case was appealed, the Supreme court ruled in favor of the
corporations and it was declared that state law could not prevent corporate funding for ballot
initiatives. This directly relates back to the Citizens United v. Federal Election Commission
case. The reasoning behind this was that if restrictions were put upon the large corporations, but
not individual people, it would create a fairness problem in addition to the corporations not being
protected by the first amendment14.
The majority decision was made five to four in the U.S. Supreme Court. It stated that limits on
political spending by non-profit and for-profit organizations are prohibited by the first
amendment of the United States constitution which protects individuals rights of free speech by
prohibiting laws that interfere with it. This would then lead to the categorization of corporations
and unions as individual people with individual rights protected by the first amendment. This
would allow for unlimited corporate spending to fund advertisements created by corporations
that favor certain presidential candidates directed to sway voters and ultimately allow
corporations to control a large portion of our government thus limiting democracy in the United
States15.
Analysis and Opinions
I view the outcome of the Citizens United v. Federal Election Commission case in a black and
white manner. By making the decision to rule in favor of Citizens United, the U.S. Supreme
Court has basically granted a substantial amount of power to corporations. The mindset that a
large corporation should have the same first amendment rights as an individual person is
outlandish and largely flawed. I understand that in the first amendment it states that all
associations of individuals are protected under freedom of speech, but I disagree with the
mentality that a corporation can have an opinion or belief. The fact that corporations can display
14 "Justice Rehnquist's Dissent in First National Bank of Boston v. Bellotti." Reclaim

Democracy. Wordpress, 14 July 2012. Web. 24 Apr. 2016.

<http://reclaimdemocracy.org/rehnquist_dissent_bellotti/>.
15 Supreme Court of the United States Brief: Citizens United v. Federal Election Commission.

Washington, DC: American Bar Association. Print.

Rubin 10
favoritism for a certain presidential candidate by airing insulting campaign advertisements does
not justify that they should be considered entities that deserve the same rights as citizens.
I believe that the power of an individuals opinion is much smaller in comparison to the
power of corporations opinion. An individuals opinion is fueled by a persons beliefs,
intentions, values, and priorities. These vary greatly from person to person. Whereas, a
corporations main priority is making profit (from an economic stand point). I feel that this
Supreme Court decision opposes the original idea of a democracy. We the people was not
intended for wealthy corporations. It is unethical for these corporations to have the power to
limitlessly fund presidential campaign advertisements that favor particular candidates that target
voters and are intended to sway their choices. I firmly believe that Chief justice Roberts had the
full intention of favoring Citizens United and their argument only to satisfy his desired outcome
that would give himself and the government more power and control.
I also feel that the result of this case directly opposes the idea of stare decisis. The fact
that judge Roberts and the rest of the court overruled two previous U.S. Supreme Court cases
makes me wonder how corrupt our legal system is. I believe that both parties in this case had
flawed arguments that were at risk and I find it disturbing that the flaws in the Citizens United
argument were not carried through.