Supreme Court Delivers a Major Victory for Freedom of Speech

Supreme Court Delivers a Major Victory for Freedom of Speech—

Court Invalidates Prohibition Against

Corporate Expenditures for Political Purposes

Citizens United v. Federal Election Commission, 558 U.S. ___ (2010)

by C. Paul Smith

On January 21, 2010, the Supreme Court ruled (5-4) in Citizens United v. Federal Election Commission, 558 U.S. ___ (2010) that the federal law prohibiting corporations from making independent expenditures for “electioneering communications” is unconstitutional.  This ruling invalidated an important provision in the Bipartisan Campaign Reform Act of 2002 (BRAC).  President Barack Obama announced his disagreement with this decision a few days later in his State of the Union Address, when he incorrectly chastised the Supreme Court for wrongly overturning a century of settled law on this important issue.

I don’t ever recall seeing the President openly attacking the Supreme Court in a State of the Union Address.  The impropriety of this was apparently lost on President Obama—who committed three distinct errors:  (1) The State of the Union Address, an event at which all three branches of the government convene, is not the proper forum for the President (one Branch) to chastise another Branch (the Judiciary); (2) The President’s statement that the Supreme Court had “reversed a century of law” was incorrect and misleading; and (3) President Obama failed to appreciate that this Supreme Court ruling and opinion was a good and important decision to strengthen the freedoms of speech and press in America.

The Citizens United decision can be summarized as follows:  It struck down the BCRA provision (2 U.S.C. Sec. 441b) that prohibits corporations from making political communications within 30 days of a primary and within 60 days of a general election.  There are two principal reasons why the Court struck down this provision:  First, there is no valid constitutional reason to discriminate

against corporate speech versus the speech of any other entity.  Second, Section 441b exempted public media corporations from the prohibition—and there is no logical or legal basis for treating public media corporations differently.  There exists no justifiable reason for this disparate treatment of corporations in their exercise of political speech.  There is no constitutional basis for penalizing certain corporate speech based upon who the speaker is.

Once the Court determined that the corporate prohibition was wrong, they next had to address the 1990 case of Austin v. Michigan Chamber of Commerce, 494 U.S. 652, where the Supreme Court held for the first time that the political speech of corporations may be banned.  As Justice Kennedy explained, the principal of stare decisis prevents the Supreme Court from overturning prior decisions “unless the most convincing of reasons demonstrates that adherence to it puts us on a course that is sure error.”  The Court found such to exist (J. Kennedy, Slip Opinion, p. 47); the Court found that “Austin abandoned First Amendment principles” (J. Kennedy, Slip Opinion, p. 48) and therefore the Court overturned Austin.  The Court stated that Austin was actually the aberration—that Austin “itself contravened this Court’s earlier precedents in Buckley [1976] and Bellotti [1978].  Ibid. The Court pointed out that when the Supreme Court first considered the constitutionality of the BCRA in McConnell v. Federal Election Commission, 540 U.S. 93 (2003), that no one argued in that case that the Austin case was wrong and should be reversed.  So the McConnell ruling did not address the fundamental issue that now requires the Court to invalidate this important part of the BCRA.1

Thus, the Citizens United decision overturned a 20-year-old case, that was manifestly incorrect; there was no 100-year-old precedent that was overturned in Citizens United.

The Dissenting Justices argued that stare decisis should uphold the corporate prohibitions of the BCRA, and prevents the Court from revisiting the Austin case.  The Majority disagreed.

The Dissenting Justices also argued that the corporate prohibition helps to prevent corruption of elections by preventing corporations from buying elections with infusions of their monies.  But the Majority found that the prohibition against indirect corporate speech was without constitutional merit; that the alleged corrupting influence cannot be shown; and that the disparate treatment of media corporations from other corporations is a blatant violation of First Amendment principles.

On another provision of the BCRA, the Court upheld the BCRA requirement (Sections 201 and 311) that the identity of the speaker of electioneering speech must be disclosed and reported.  Justice Thomas was the lone dissenter to this ruling.  The Court acknowledged that this imposed a minimal restriction on speech, but that the requirement enabled voters to be fully informed of who is speaking, and thus better enabled to give proper weight to the messages.  (J. Kennedy, Slip Opinion, pp. 52-55.)

1 Constitutional Law Updates has followed this important issue for almost a decade.  We addressed the BCRA upon its passage in July 2002; in May 2004 we criticized the McConnell decision; and in October of 2007 we wrote about FEC v. Wisconsin Right to Life, 551 U.S. ___ (2007), which overturned an important part of the BCRA.

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