Bad Decision: Citizens United
On January 21, 2010, the Supreme Court issued a decision in the case of Citizens United v. Federal Election Commission, 558 U.S. 310 (2010) that fundamentally changed the American political landscape. Free speech was redefined and our political system was thrown open to the highest bidder. The aftershocks are still being felt. The case asked a fundamental question: do political organizations, corporations and unions deserve the same rights as individual citizens?
How did a well-funded, but little-known political organization with a passion for hating Hillary Clinton get to the Supreme Court and make history? It is a story of extreme partisanship and a battle that has been fought for over 30 years.
Twenty Years of Activism
In 1988, during the Presidential campaign between George H.W. Bush and Michael Dukakis, an organization sprung up under the direction of activist Floyd Brown called Americans For Bush. It would produce one of the most notorious ads in the history of American politics, the racially-charged Willie Horton commercial which devastated any chance the Democrats had for victory. Flushed with success and now a conservative hero, Brown started a new group, Citizens United, another 501(c)(4) nonprofit organization. Though Bill Clinton would enter the White House in 1993, the group would have continued success with projects targeting the Clintons and other Democrats.
During this time, Brown also hired a research assistant, college dropout David Bossie, who would become president of the organization in 2000. After George W. Bush led the invasion of Iraq, a new very fervent opposition sprung up on the left. Michael Moore, the notorious filmmaker, set his sights on beating the GOP in 2004 by producing “Fahrenheit 9/11. Ironically, Bossie was inspired by Moore. The film was more campaign ad than serious documentary. Citizens United was about to be transformed into a powerful media arm, producing their own pseudo-documentaries.
These films would be designed to hit the Democrats hard. Bossie's goal was to show them over local cable systems. But existing campaign finance law stood in their way and the Federal Election Commission (FEC) would most likely see through Bossie’s intent. He was pressed for time; wanting the movie to be released near the end of 2007.
One campaign finance law in particular had been driving conservatives crazy. From the moment it passed, the right-wing establishment had been plotting its demise.
Fighting Reform Efforts
In 2002, the Senate passed the Bipartisan Campaign Reform Act (BCRA). It became better known for its two primary sponsors, John McCain (AZ) and Russ Feingold (WI). The bill covered a wide array of campaign finance issues, but its main restrictions prohibited political party reelection committees from spending funds not subject to existing federal limits and a ban on issue advocacy ads within 60 days of a general election (30 days for primaries). Specifically, those funds could not come from an organization’s general treasury within the 30 day period. It tied contribution limits to inflation and the individual limitations were changed from annual to biennial.
Challenges were launched almost immediately, one of them led by future Senate Majority Leader Mitch McConnell, who was the Majority Whip at the time. The case would become known as McConnell v. FEC, 540 U.S. 93 (2003). McConnell was philosophically opposed to all campaign finance reform efforts. He would lead a large group of organizations and individuals who claimed the new law infringed on their right of free speech. It was an odd collection of allies, such as the California Democratic Party, the National Rifle Association and the American Civil Liberties Union. The challenge would fail, but it set the stage for what was to come. By 2006, Court’s lineup changed; moderate voice Sandra Day O’Connor was replaced by a staunch conservative, Samuel Alito.
A Supreme Win
The next significant challenge came from FEC v. Wisconsin Right to Life 551 U.S. 449 (2007). But unlike McConnell, this conservative-only challenge was successful. During the 2004 campaign, the group wanted to run an ad discussing Senator Russ Feingold’s pro-choice views, but the BCRA specifically banned such ads so close to election day, no matter how artistically hidden the intent. Their resourceful attorney, James Bopp, decided to create a minimal challenge to the law, specifically section 203; one that would just pertain to his client. Section 203 prohibited corporate and labor disbursements for electioneering communication.
After an initial loss in Federal Court, multiple appeals, a Supreme Court remand, and a return hearing at the Court, WRTL won their case in 2007. Chief Justice Roberts wrote the majority decision. Though limiting its decision to just WRTL, the Court made it clear its desire for a major challenge to McCain-Feingold.
Bossie now saw his chance. Hillary Clinton was presumed to be the front runner for the 2008 Democratic nomination. In preparation for that fight, Citizens United produced a film, Hillary: The Movie, that was basically a hit piece exploring the many right-wing conspiracies against the Clintons. From the start of the process, Bossie knew this could be the vehicle to break open campaign finance laws. So, he hired Bopp.
Their first move was to take it to the FEC, which Bossie knew would rule against him. They obliged, citing the work as electioneering communication. Bopp filed an appeal in the D.C. District Court and lost that as well. The time had come for the Supreme Court challenge Bossie had waited for the entire decade.
However, they needed extra legal firepower and got it in the form of the legendary Ted Olsen. Olsen had represented the Bush campaign during Bush v. Gore in 2000 and eventually became the Solicitor General under Bush. His cool demeanor belied his genius. Having argued in front of the Court dozens of times, Olson knew the stakes.
A Limited Strategy
Similar to Bopp, Olson’s main legal strategy in Citizens was to argue for a limited decision, one just dealing with the movie. He would not challenge McCain-Feingold on its face; trying to declare it completely unconstitutional might appear like an overreach. The main premise of his argument was that BCRA did not apply to documentaries and their distribution channel, video on demand. It would not be shown free on commercial television, so it could not possibly be considered any sort of advertising. Folks who ordered the movie knew what they were getting.
Olson also had famed First Amendment attorney Floyd Abrams on his side. Abrams was representing Mitch McConnell, who had filed an Amicus Curae (Friend of the Court) brief in the case.
The Court's majority would prove to be a very receptive audience. The conservative justices, saw this as an opportunity to destroy the existing campaign finance structure and make it more in line with their radical ideas about free speech.
Eyes of the World
The initial round of arguments began on March 24, 2009 with Deputy Solicitor General Malcolm Stewart representing the government. The Office of the Solicitor General represents the federal government when it has litigation before the Supreme Court. Stewart was a 17-year veteran of the SG office and considered to be a worthy opponent to Olson.
Olson rose to state his case and matter-of-factly laid out the narrow focus of his argument, painting it as just a guy who wanted to broadcast a movie on cable. He even referred to the film as a form of "robust, uninhibited debate." Bush 41 appointee Justice David Souter began the first challenge to his argument.
"Mr. Olson, if the film were distributed by General Motors, would your argument be the same?"
Olson calmly stuck to his points, conceding little, but always going back to his thesis: a 90 minute documentary by a political group was not what McCain Feingold intended to prohibit. Justices Ginsburg and Breyer broadened Souter's questions, questioning Olson on how much power a corporation could have in regard to the First Amendment. Olson's responses always went back to the same theme: painting Citizens United as just a folksy, grass roots organization, nothing like the mega corporations that worried the liberal Justices so much.
Justice Kennedy joined in and then took the oral arugments in a slightly different direction, focusing on the length of the movie. Olson deflected all counterpoints. He was an extraordinarily competent litigator, maybe one of the best to ever appear in front of the Court.
The case put on by Deputy Solicitor General was a disaster of epic proportions.
From the start, four of the conservative justices, Scalia, Alito, Anthony Kennedy and the Chief Justice were on a mission. They spotted the weak point. Kennedy, known for his moderation, was actually a First Amendment absolutist, holding the most extreme viewpoint on the subject and was in agreement with the conservatives on most campaign finance legislation.
Alito asked a seemingly innocuous, and easy question for an experienced litigator. He challenged Stewart on where the government could draw the line on speech limitations, finally asking, "Could the law limit a corporation from offering a book on the same subject matter?" Stewart was flummoxed. He mistakenly answered "Yes." It was all downhill after that.
Kennedy joined in hammering him on this point, feigning astonishment. Question after question came; court watchers got uncomfortable. Finally, Roberts issued the coup de grace with one final question that made the flailing Stewart sound utterly ridiculous, "If it has one name, one use of the candidate’s name, it would be covered, correct?”
Stewart again answered in the affirmative. He was incorrect. The BCRA did not allow the banning of books containing election material. It concerned broadcast material only.
When the vote was taken, the outcome was as expected, 5-4 n favor of Citizens United. Chief Justice Roberts assigned himself the majority opinion. After writing a draft of the opinion, Kennedy wrote a concurrence that was much more broad in scope, arguing that the BCRA was unconstitutional. When the other conservative justices read the draft, they argued for Kennedy's concurrence to be the majority opinion. Roberts yielded to his colleagues.
The dissent was assigned to Souter, who was soon to be retired. When he read Kennedy's draft, he was incensed, as was his fellow dissenter, Senior Associate Justice John Paul Stevens. Souter went on to write a scathing critique of what Roberts had just done. He accused the Chief Justice of procedural violations, manipulating a result that was not warranted by the case presented.
Roberts was shocked and grew concerned about public opinion. So he deviously outmaneuvered his liberal colleagues by withdrawing Kennedy's opinion and scheduling a re-argument for the next term, after Souter was retired. Stevens and Souter relented and in a rare move, Citizens United v FEC was scheduled for re argument in September. When the change was announced, it stunned court watchers and even veteran reporters.
The Court would allow new Questions Presented. These questions appear on cert petitions written by a litigant. For the first argument, they were very narrow in scope, mentioning the film and the district court ruling. But for the re argument, they became broad in scope. Three of the four mentioned McCain-Feingold, even mentioning the constitutionality of the statute.
An Outcome Predetermined
September 9, 2009 was going to be another sweltering day. The high would reach 95. Crowds still gathered outside the Court building. It would be a momentous day for so many, not least of which for Elena Kagan, President Obama's new Solicitor General. Before becoming the SG, she had never tried a case before. Now she was about to have her first appearance before the Supreme Court. The odds were stacked against her. Despite Justice Souter being replaced by an Obama appointee, Sonya Sotomayor, the court still had a 5-4 conservative majority.
From the outset, the conservatives did everything in their power to pull Ted Olson across the finish line and expand his argument. Scalia did most of the pulling by delving deep into BCRA's restrictions, giving Olson every chance to expand his argument. The liberal justices tried to punch holes in Olson's stance, by making him explain the definition of a "corporation" and Justice Stevens even let Kagan walk back some of Stewart's ridiculous answers from the previous hearing. But it was to no avail. After the arguments a vote was taken and the outcome the same. Limits on Independent expenditures were now history.
There was a saving grace for the liberal wing, though it was a minor victory. Some restrictions were upheld. If a communication lacked a clear plea to vote for or against a particular candidate, it was still subject to the statute and that documentaries about a particular candidate should be treated like advertisements.
The majority opinion was assigned to Kennedy while Justice Stevens assigned the dissent to himself. He was about to load a prosaic shotgun and fire both barrels at his colleagues.
A Blistering Dissent
89-year old John Paul Stevens had become very disenchanted with the behavior of the Court in his last years. Appointed by Gerald Ford, the World War II veteran was the epitome of the establishment Republican. However, he had grown much more liberal during his tenure. By 2009, he had reached his breaking point with activist, conservative jurists.
In his dissent, Stevens not only opposed the actual ruling and its reasoning, he also questioned the intellectual foundations of his fellow justices. He foresaw what was about to occur; give politicians an inch, they would take a thousand miles. First Amendment purists were about to unleash the greed and avarice of the political class, leading to unchecked corruption.
It read more like a newspaper editorial than the very academic prose of court clerks referencing the case law to support the opinion. Though well cited, it was vitriolic and often humorous. Overall, it is a somber read because his predictions all came true.
He wasted no time getting to the heart of the matter:
"...the distinction between corporate and human speakers is significant. Although they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office."
The hypocrisy of his fellow justices troubled him deeply. Conservatives had long complained about liberal activist judges who did not adhere to the nation's historical precedents. But Stevens pointed out that they had turned an applied (limited) decision into a challenge of the entire law, calling it a transgression from the a cardinal principle of the judicial process.
"It is all the more distressing that our colleagues have manufactured a facial challenge, because the parties have advanced numerous ways to resolve the case that would facilitate electioneering by nonprofit advocacy corporations such as Citizens United, without toppling statutes and precedents."
He also took the time to target the originalists on the Court as well, men who regularly claimed their interpretation of the Constitution was in line with the Founders:
"The Framers thus took it as a given that corporations could be comprehensively regulated in the service of the public welfare. Unlike our colleagues, they had little trouble distinguishing corporations from human beings...it was the free speech of individual Americans that they had in mind."
Stevens would retire at the end of the 2010 term, still expressing grave concerns about the direction and tone of the Court.
The fallout was immediate. In March 2010, the D.C. Circuit Court of Appeals declared that the contribution limits of the Federal Election Campaign Act of 1972 were unconstitutional in its decision in SpeechNow v. FEC. The unanimous decision found that limits could not be put on individuals making contributions to political organizations who in turn make independent expenditures. Individuals were still be limited in their direct contributions to candidates. But basically, these "independent" groups were just shell organizations that launder money to campaigns. So the grift was on.
In the subsequent years, the pursuit of campaign cash became all consuming. 501(c)(4) groups could now raise unlimited amounts without disclosure. This led to the rise of "dark money." Most ominously of all, it set the stage for foreign money to flow into American campaigns.
Super Pacs began to emerge. These political action committees can also accept unlimited contributions from corporations and unions as well as from individuals, but must disclose their donors. $800 million was spent by these groups during the 2012 cycle. However, the corruption is the same. Corporations can donate to a 501(c)(4),,remain anonymous, and then the group can then donate it to a SuperPac. Between mid 2010 and the end of 2011, over 250 SuperPACs were created.
Corporate spending has outpaced unions for 40 years and the gap widened considerably after Citizens United.
In 2016, dark money groups and Super PACs spent $1.4 billion. Conservative dark money still dominates, making up 76% of all reported spending, along with nearly all unreported spending on issue ads. But liberal groups are catching up with no end in sight. All of this unlimited spending has led to a loss of trust in our system and if left unabated, the public will continue to lose faith in democracy.
As of 2019, David Bossie's net worth is approximately $9 million. Citizens United contributed $319,500 to federal candidates and took in $387,246 from individual donors. Our elected officials are for sale.
The Supreme Court decision in Citizens United did not expand the First Amendment, it diminished the power of an individual citizen to choose their elected officials. Justice Kennedy declared that the sale of access to elected officials is not corruption, adding that “the appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy.” At best that is naivete; at worst, Kennedy is a fool. It seems we cannot even rely on the most learned among us anymore.
Amar, Vikram David. “The Citizens United Case and Jeffrey Toobin’s Account of it in The New Yorker: An Interesting Story but an Incomplete Argument. Verdict (justia.com). May 25, 2012. www.justia.com
Carbajal, Salud Rep. "Shining a light on corporate spending in our elections." The HIll. May 8, 2018.
Goldstein, Tom. “Jeff Toobin on Citizens United (slightly expanded).” Scotusblog, May 14, 2012. Scotusblog.com
Hasen, Richard L. “The Decade of Citizens United.” Slate.com, December 19, 2019.
Kennedy, Liz. "10 Ways Citizens United Endangers Democracy." Demos, January 19, 2012. demos.org
Kramer, Curtlyn. "Vital Stats: The widening gap between corporoate and labor PAC spending." Brookings Institution, March 31, 2017. www.brookings.edu.
Liptak, Adam. "Justice, 5-4, Reject Corporate Spending Limit." New York Times, January 21, 2010. ProQuest Newspapers, King County Library System (kcls.org).
Maguire, Robert. "$1.4 billion and counting in spending by super PACs, dark money groups." Center for Responsive Politics, November 9, 2016. opensecrets.org.
McElroy, Lisa. “Citizens United v. FEC in Plain English.” Scotus Blog, January 22, 2010. www.scotusblog.com.
Rothschild, Matthew. “Justice Stevens Dissent in Citizens United Lives On! “ Wisconsin Democracy Campaign, July 17, 2019. www.wisdc.org.
Sloan, Calvin. “Justice Stevens: A Crack in the Foundation of the Citizens United Majority Opinion is Inevitable.” People of the American Way, June 1, 2012. www.pfaw.org.
Toobin, Jeffrey. “Money Unlimited: How Chief Justice John Roberts orchestrated the Citizens United decision.” The New Yorker. May 14, 2012. www.newyorker.com.
Wood, Abby K. “Citizens United turns 10 today. Here’s what we’ve learned about dark money.” Washington Post Online Edition. January 21, 2020.
Citizens United v. Federal Election Commission, 558 U.S. 310 (2010)
Federal Election Commission v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007)
McConnell v. Federal Election Commission, 540 U.S. 93 (2003)
*Full text decisions can be found at supremecourt.gov or other related sites listed below
Brennan Center for Justice
Cockle Legal Briefs
Cornell Law School (law.cornell.edu - full text of Stevens' dissent as well as majority opinion and concurrences)