Transcript Citizens United v. FEC

Citizens United v. FEC
130 S.Ct 876 (2010)

Citizens United overruled, in whole or in part,
two of the Court‘s own precedents – Austin v.
Michigan Chamber of Commerce (1990) and
McConnell v. Federal Election Commission
(2003) – and struck down a significant
portion of the Bipartisan Campaign Reform
Act of 2002 (BCRA) (also known as ―McCainFeingold).

It called into question dozens of state laws,
which will now have to be repealed or
amended to comply with the decision.
Dramatic Impact

Prior to Citizens United, a corporation that
wished to support or oppose a federal
candidate had to do so using PAC funds –
funds amassed through voluntary
contributions from individual employees
and shareholders who wished to support
the corporation‘s political agenda. Such
funds were subject to federal contribution
limits and other regulations
Corporate electioneering before
Citizens United

Citizens United decision will allow
corporations that wish to directly influence
the outcome of federal elections to draw
from their general treasury funds, rather
than PAC funds, to support or oppose a
particular candidate
Corporate electioneering after
Citizens United




In the 2008 election cycle, the nation‘s largest corporation,
Exxon-Mobil, formed a PAC that collected approximately
$700,000 in individual contributions. Thus, Exxon-Mobil
was limited to spending this amount on advertisements
directly supporting or opposing a federal candidate.
During the same 2008 election cycle, Exxon-Mobil‘s
corporate profits totaled more than $80 billion. Citizens
United frees this one corporation to increase its direct
spending in support or opposition to federal candidates by
more than 100,000 fold.
During the 2008 election cycle, all winning congressional
candidates spent a total of $861 million on their campaigns
– less than one percent of Exxon-Mobil‘s corporate profits
over the same period.
Down ballot effects
Huge Sums of Corporate Money
Now available in Elections


The censorship we now confront is vast in its
reach. The Government has ―muffle[d] the
voices that best represent the most significant
segments of the economy.‖ And ―the electorate
[has been] deprived of information, knowledge
and opinion vital to its function.‖
By suppressing the speech of manifold
corporations, both for-profit and nonprofit, the
Government prevents their voices and viewpoints
from reaching the public and advising voters on
which persons or entities are hostile to their
interests.
From Justice Kennedy’s Majority
decision

While American democracy is imperfect,
few outside the majority of this Court
would have thought its flaws included a
dearth of corporate money in politics.
From Justice Stevens’ dissent:

Stare decisis is a “principle of policy.”
When considering whether to reexamine a
prior erroneous holding, we must balance
the importance of having constitutional
questions decided against the importance
of having them decided right.
Justice Roberts (concurring)

The Court’s central argument for why stare decisis
ought to be trumped is that it does not like Austin.

In the end, the Court’s rejection of Austin and
McConnell comes down to nothing more than its
disagreement with their results. Virtually every one of
its arguments was made and rejected in those cases,
and the majority opinion is essentially an
amalgamation of resuscitated dissents. The only
relevant thing that has changed since Austin and
McConnell is the composition of this Court. Today’s
ruling thus strikes at the vitals of stare decisis.
Justice Stevens (dissent)

The Court’s central argument for why stare decisis
ought to be trumped is that it does not like Austin.

In the end, the Court’s rejection of Austin and
McConnell comes down to nothing more than its
disagreement with their results. Virtually every one of
its arguments was made and rejected in those cases,
and the majority opinion is essentially an
amalgamation of resuscitated dissents. The only
relevant thing that has changed since Austin and
McConnell is the composition of this Court. Today’s
ruling thus strikes at the vitals of stare decisis.
Justice Stevens (dissent)
money = speech
 corporations = people
 elections = marketplace

3 Principles in Citizens United
DISCLOSE ACT (Van Hollen, D-MD)
HR5175, (Schumer, D-NY) went to Rules
June 22, 2010
 Requires major backers to appear and
announce they sponsored the ad. The top
five organizations that donate to the ad
must also be disclosed.
 But NRA.

Congressional Response

McComish v. Bennett (Arizona’s Public Financing Scheme)

On May 24, 2010 plaintiffs petitioned the Supreme Court to
vacate the appellate stay by May 28th in order to block the
distribution of matching funds to candidates participating in
the state's public financing system in 2010. On June 8,
2010 the Supreme Court granted plaintiffs' petition
pending the Court's certiorari decision. In doing so, the
Court blocked the distribution of any subsidies to any CCEA
candidates.

It is unlikely that the Court issued the Order just to deny
cert and affirm the 9th Circuit. It is far more likely that
certiorari will be granted the CCEA overruled.
Public Financing Schemes Next to
be Overruled
Soft Money – money collected by national
political parties not subject to direct
candidate limits – has been challenged as
unconstitutional, RNC v. FEC.
 Ban Upheld by 3 Judge Panel in DC Circuit
 Cert. determination pending.

Ban on Soft Money Next?