The Change that Citizens United and SpeechNow.org brought to the Election System

— Burke & Eisner represents people who have MDS and AML caused by Benzene —

Citizens United and SpeechNow.org

Almost seven years ago, two federal court cases, one decided by the US Supreme Court and one in a US Court of Appeals ruling, restructured federal election campaign contributions, gave birth to the Super PAC, and laid the foundation for the 2016 election cycle’s unprecedented campaign spending. Citizens United and SpeechNOW.org together defined the freedom of corporations and unions to raise unlimited funds and then spend those funds on the production and distribution of election-related communications independent of a specific political party or candidate’s campaign.

During the 2008 presidential election cycle, Citizens United, a nonprofit corporation, sought the right to fund, produce, and market an independent film critical of Hillary Clinton in the lead-up to the 2008 primaries. The Federal Election Commission prohibited the marketing or airing of the film in accordance with the 2002 Bipartisan Campaign Reform Act (BCRA) and its federal ban of spending for election-related communication that mentions a particular candidate by a corporation or union within 30 days prior to a federal primary. Citizens United objected to the FEC’s ruling. They found it to be hypocritical considering the FEC had allowed the marketing and airing of Michael Moore’s film, Fahrenheit 9/11 in 2004 over Citizens United’s objections at the time. In light of their objections, Citizens United decided to take their case against the Federal Election Commission to federal court.

The initial question before the Court was simply whether or not Citizens United should have been permitted to market and air their film during the 2008 primaries. Arguments were heard in March of 2009 and initial decision and dissent documents were drafted, but during that process Justice Kennedy suggested that the Court’s ruling ought to extend beyond Citizens United and their one film to address larger issues with BCRA and federal campaign finance reform. Justice Stevens and Souter objected that the Court was attempting to govern from the bench. The internal debate triggered a reargument of the case in September of 2009 and a marked expansion of the specific questions presented to the Court.

The Supreme Court issued its 5-4 ruling in Citizens United v. Federal Election Commission in January of 2010. In Justice Kennedy’s majority decision, the Court ruled that all corporations and unions, to include non-profits, are entitled to spend funds on election-related communications in any form, at any point in an election cycle, as these methods of communication are protected by the First Amendment’s free speech provisions. The majority opinion stated that BCRA permitted Congress and the federal government to unconstitutionally censor political, election-related speech by corporations or unions. Furthermore, Justice Kennedy wrote that the only way a corporation could ensure its ability to speak freely about its political position was to spend money on producing and disseminating their message. Therefore, any limit on the corporation’s election communication fundraising or budget was a limit on free speech, itself. The Court was careful to ensure the ruling did not in any way affect the existing ban on federal campaign contributions by corporations and unions to an individual campaign or specific political party. The ruling also continued to uphold disclosure requirements for the sponsors of all election-related communications.

Justice Stevens, who authored the dissent, argued that the Court had opened the door to allowing corporations to bully federal elected officials with the threat of exercising their right to secure enormous funding for unlimited attack ads. He thoroughly chastised the majority for equating legal entities like corporations with the people of the United States, themselves, saying that granting free speech rights to non-persons would inevitably warp the public discourse around federal elections and eventually undermine the populace’s confidence in their own democracy.

Three months later, a non-profit organization called SpeechNOW.org challenged federal limits on the contributions they could receive to fund independent expenditures during an election cycle. Independent expenditures are expenses that fund election-related communications that are not made with the help or support of a specific candidate’s campaign or political party. It is independent expenditures, or IEs, that fund the sorts of communications Citizens United deemed constitutionally protected by the right to free speech.

In SpeechNOW.org v. Federal Election Commission, a US Court of Appeals relied heavily on the Supreme Court’s Citizens United ruling and unanimously struck down federal limits on contributions to federal political committees. Citizens United and SpeechNOW.org combined also to allow corporations and unions to make unlimited donations to any independent expenditure-only organization. The two federal cases together gave way to the meteoric rise and incredible power of the Super PAC in the federal election cycles to follow.

Thanks to Citizens United and SpeechNOW.org, political action committees (PACs) may now receive unlimited donations from individuals, corporations, or unions and spend them on any election-related communication material they please. This produced an incredible explosion of independent federal campaign spending which more than doubled in the wake of these two judicial rulings. During the 2008 election cycle, outside spending by organizations independent of a specific campaign or political party reached a little over 300 million dollars. By the next presidential election cycle in 2012, two years after the Citizens United & SpeechNOW.org rulings, outside spending skyrocketed to approximately 1.3 billion dollars. The 2016 federal election cycles saw that amount grow to almost 1.5 billion dollars, 1.1 billion of that being spent by Super PACs alone.

Citizens United opened the door to unlimited amplification of the wealthiest voices in the public forum. Many of the donations funding these now unrestrained Super PAC budgets involve hundreds of thousands and even millions of dollars in contributions from the nation’s most wealthy citizens.

Now that Citizens United is the law of the land, it will most likely take nothing short of a constitutional amendment to reign in the unbridled power of the Super PACs and their unlimited independent expenditures.