🌊 Inside the Citizens United Decision

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Good morning, Roca Nation. Here are today’s four need-to-know stories: 

By Max Frost

When Citizens United reached the Supreme Court on March 24, 2009, it didn’t seem all that significant a moment. 

The case was relatively straightforward: Citizens United, a non-profit corporation, had wanted to air a documentary critical of Hillary Clinton on cable on demand. But campaign finance law – intended to prevent deep-pocketed entities from shaping elections – outlawed corporate campaign spending. 

Citizens United sued, and the case rose through the system, landing before the Supreme Court on a frosty Tuesday in March 2009. 

The reason the case didn’t seem that important was that Citizens United’s lawyer, Theodore B. Olson, wasn’t asking the Court to overturn the law. Rather, he just argued that the specific movie was not covered by the law and should be allowed. 

But things were about to take a turn. 

Historically, the classic questions around election spending have been: How much money can be spent, and what rights do people and institutions have to spend it? Two years are notable here: 1976 and 2002. 

Campaign finance rules enacted in 1976 put spending in two buckets. 

There was “express advocacy,” which included ads that explicitly urged voters to support or oppose a specific candidate. These ads were treated as campaign expenditures and therefore subject to strict limits and disclosure rules. 

Then there was “issue advocacy,” which covered ads discussing issues broadly. As such, they were considered protected speech and not regulated as campaign spending, even if they clearly referred to certain candidates. 

Corporations, unions, and wealthy individuals had learned that they could get around this loophole by issuing “issue” ads that effectively backed or criticized a candidate. To close the loophole, Congress passed the Bipartisan Campaign Reform Act – also known as McCain-Feingold or BCRA – in 2002. 

The law prohibited corporations and unions from funding “electioneering communications” that clearly referred to a federal candidate within 30 days of a primary or 60 days of a general election. 

Citizens United’s documentary – whose criticism of Hillary Clinton was intended to correspond with the 2008 primary – was deemed to fall under this category and was, therefore, prohibited. Upon appeal, it reached the Supreme Court in 2009.

Citizens United’s argument was simple: BCRA did not apply to documentaries broadcast via video-on-demand; only to commercials. Olson, the attorney, was not asking for the law to be struck down – just for the documentary to be allowed. 

To argue the counterpoint was Deputy Solicitor General Malcolm Stewart, the government’s representative. In essence, he said the law and its restrictions were constitutional. 

But Justice Samuel Alito wasn’t convinced. 

“Do you think the Constitution required Congress to draw the line where it did, limiting this to broadcast and cable and so forth?” he asked. What about restricting pre-election speech in a book: “Would the Constitution permit the restriction of all those as well?”

Stewart replied: “Those could have been applied to additional media as well.”

Alito: “That’s pretty incredible. You think that if a book was published, a campaign biography that was the functional equivalent of express advocacy, that could be banned?”

Soon after, Justice Anthony Kennedy joined in: “Your position is that, under the Constitution, the advertising for this book or the sale for the book itself could be prohibited within the 60- and 30-day periods?”

Then Chief Justice John Roberts: “If it has one name, one use of the candidate’s name, it would be covered [by the law], correct?” 

Stewart: “That’s correct.”

Roberts: “If it’s a 500-page book, and at the end it says, ‘And so vote for X,’ the government could ban that?” 

Stewart: “Well, if it says ‘vote for X,’ it would be express advocacy and it would be covered by the preexisting Federal Election Campaign Act provisions.”

From being a case about whether the law applied to one documentary, it had become one about whether Congress had the right to police pre-election political speech broadly. 

That was in March. A decision was due in June. 

Behind closed doors, a 5-4 majority emerged in favor of overturning BCRA. But then, on April 30, came a remarkable turn of events.

That day, Justice David Souter – who was assigned to write the minority opinion – announced his resignation. He then wrote a dissent that aired the court’s dirty laundry and accused Chief Justice John Roberts, who was in the majority, of violating Court procedures to achieve the outcome he wanted. Roberts and other justices reportedly believed that the dissent, if published, could damage the court’s credibility. 

So they struck a deal: On June 29, 2009 – the last day of the term, by which all decisions were due – they announced that they would reargue Citizens United in September 2009. 

On September 9 – exactly six months after the case’s first round of arguments – Olson retook the stand for Citizens United. For the government, there was Elena Kagan – a future Supreme Court justice – who had been made solicitor general. 

“What the Court has said in the First Amendment context…over and over again is that corporations are persons entitled to protection under the First Amendment,” Olson stated in response to a question by Justice Ruth Bader Ginsburg. According to that logic, their speech, like that of individuals, was protected. 

Ginsburg replied: “Would that include today’s mega-corporations, where many of the investors may be foreign individuals or entities?” 

Olson: “The Court in the past has made no distinction based upon the nature of the entity that might own a share of a corporation.”

Next up was Kagan, who defended BCRA, saying, “For over a hundred years Congress has made a judgment that corporations must be subject to special rules when they participate in elections, and this Court has never questioned that judgment.”

As the questioning went on, it became clear that the majority was with Olson, not Kagan. In reply, Kagan and the justices sympathetic to her suggested the Court could just narrow BCRA’s applicability, rather than fully strike it down. 

The majority wasn’t persuaded.

In January, the decision came out. Justice Anthony Kennedy – a relative moderate with hardline views related to free speech – wrote the majority. 

“Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people,” he began. 

He wrote:

He continued:

And he concluded: 

And with that, BCRA – and two related Supreme Court precedents – were largely tossed out. Corporations would be allowed to spend as much as they’d like to support their preferred candidates. 

What impact would that have? We’ll cover that in tomorrow’s installment.

Editor’s Note

Thank you all for reading. We’ll hold off on any questions, as this is just part one of a three-part series. To access the rest, make sure to become a Roca Member if you aren’t one yet!

We hope you have nice Wednesdays.

Sharing a couple of replies to yesterday’s article on how data centers are impacting our water system.

Michael from Mobile wrote:

And Jake said:

And in case you’ve missed them, check out our latest articles below:

Stay tuned for part 2 tomorrow.
—Max and Max