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US government and civics
Course: US government and civics > Unit 6
Lesson 10: Campaign financeCitizens United v. Federal Election Commission
A deep dive into Citizens United v. FEC, a 2010 Supreme Court case that ruled that political spending by corporations, associations, and labor unions is a form of protected speech under the First Amendment. In this video, Sal discusses the case with scholars Richard Hasen and Bradley Smith.
To read more about constitutional law, visit the website of the National Constitution Center. On this site, leading scholars interact and explore the Constitution and its history. For each provision of the Constitution, experts from different political perspectives coauthor interpretive explanations when they agree and write separately when their opinions diverge.
To read more about constitutional law, visit the website of the National Constitution Center. On this site, leading scholars interact and explore the Constitution and its history. For each provision of the Constitution, experts from different political perspectives coauthor interpretive explanations when they agree and write separately when their opinions diverge.
Want to join the conversation?
- I think the problem with the freedom given by the Citizens United decision has to do with there being no limit on how much money can be contributed by a corporation (like Google) or individuals (like the Koch brothers.) If there are limits on how much can be contributed directly to candidates, shouldn't there be a limit how how much can be contributed to a Super-PAC?
And since money may be contributed to a regular PAC which then turns around and contributes a large amount to a Super-PAC, shouldn't there be a requirement that donors of over, say, $1,000 be required to be named as sponsors of the ad?
An expensive ad from "Patriots for Trump" or "Lovers of the US and Hillary" or even "Citizens for Good Government" which bashes one politician or the other...doesn't it seem that people reading the ad should know who specifically is behind it, whether that is individuals or corporations or both when large amounts are contributed?(12 votes)- Hi Harriet-
Great questions. In essence, while the large amounts being spent are troublesome, the transparency issue, to me, is absolutely a problem. I think it stems from the fact that people will trust an entity with a corporate imprimatur but will investigate an individual whose name is attached to a campaign ad or a campaign contribution. Therefore -- and I think this was a little of what Citizens was about--the strategy is to keep individuals' names off of contribution lists and let them fly under the radar as a corporate entity to keep prying eyes out. We will probably never separate power/money/politics again, but I think who spends what/where should be freely available information.(5 votes)
- Let's say that we agree that it's OK for a corporation to spend money, as an entity, on political contributions. Who speaks for the corporation? Top level executives? Managers? 9 to 5 workers? Shareholders? It doesn't seem possible that every "real" person who has a connection with that corporation, or union, will agree with the direction of the expenditures. If the corporation spends one way, but you, connected to the corporation, feel otherwise, how does that get resolved?(9 votes)
- At, Hansen talks about how the identity of the speaker matters. If a Canadian National is prevented from spending money to influence an election, would corporations headquartered in another country also be prevented from spending money to influence an election? Or are corporations allowed to spend money despite being foreign owned if they operate in the US? 14:20(1 vote)
- Can a difference be formed between a book and an election campaign? Governance is not the same kind of speech as a book. Can we outlaw ALL ADVERTISING for elections. Save what a person wants to do on their own property? No advertisng for the debates, all to be provided by PUBLIC institutions. Universities, C-SPAN (elections channel) travel expeses through AMTRAK or the Military. What would the Constitutional challenge be to that law? In people speak? If we say we are protecting our election system from undue influence. Voters must choose from the words that come from the candidates mouth only. And from writings of the candidate. What would the money spenders say?(0 votes)
- This seems to be saying that if COngress passed a law that elections would be Publicly financed, this would be challenged as unconstitutional. So why is it we can not buy Judges (law adjudicators) and police offices (law enforcement) but we can buy candidates for the legislature (law makers)?(0 votes)
- My biggest question stems from the concept of swinging your arms. I have a right to swing my arms as long as I do not intimidate or hit someone else. In terms of speech, when do the voices of huge corporate interests create a monopoly of thought or limit my ability to speak because their spending of hundreds of millions of dollars drowns out my $25? Aren't they infringing on my freedom of speech?(0 votes)
Video transcript
- [Sal] This is Sal here with Rick Hasen, who's a Professor of Law
at UC Irvine School of Law, specializing in election law. I'm here with Bradley
Smith, who's former Chairman of the Federal Election Commission. He's also a Professor of Law at Capital University in Columbus, Ohio, and runs the Center for
Competitive Politics. So, we're here to talk about what seems like a very
important Supreme Court case, Citizens United versus Federal
Election Commission in 2010. Could you give a little
bit of background on what got us to this
Supreme Court decision? - [Rick] Well, the federal government, specifically Congress, gets
to pass laws that regulate the financing of federal elections, and then, for state and local elections, that would be an issue for each state, and so, Congress, going
back more than a century, has passed laws limiting
the amount of money, kinds of money that can be raised, what has to be disclosed, they
passed a whole bunch of laws, and these laws are sometimes challenged as being unconstitutional. The usual challenge is
that the law violates part of the First Amendment, which protects freedom of
speech and association, and the specific issue in
the Citizens United case had to do with the First
Amendment rights of corporations to spend money to support
or oppose candidates for federal office. - [Bradley] Well, it is an important case, but it is a widely misunderstood case. The case, for example,
is not about the question of whether, quote,
corporations are people. We sometimes hear that. Not a single justice on the
court, in any of the opinions, addresses that issue, because
it's a longstanding doctrine of corporate personhood
that corporations have certain rights that people have when they join together to associate. The case is not about the question of whether money equals speech. The court has long held, not that money is speech, but
that you can't try to limit an activity which would be
protected under the Constitution, like speech, by limiting money. For example, you could not
say it shall be illegal to spend any money in the
United States to publish a book or to pay an author or to
operate a bookstore, right? - [Rick] So, if you were,
say, General Motors or Google, and you wanted to put
an ad online or on TV or in a newspaper that says support President Smith for reelection, that would be illegal if it was paid for with money from the corporation. Corporations could still participate, but they'd have to set
up a separate committee, called a political action
committee or a PAC, and they could only solicit certain people to put money into that pack, and they couldn't take
money that they made from selling cars or software
or something like that and use it for political purposes, and in Citizens United,
reversing some earlier cases, the Supreme Court said that corporations, like individuals, have
a First Amendment right to spend, independently, supporting or opposing
candidates for office, and that it would be
unconstitutional to limit this because it would be too
much of an infringement on the speech rights of corporations. - [Bradley] It's about
what rights people have to engage in speech when they have chosen to organize as a corporation, so the court makes the
holding that corporations and unions have constitutional protection under the First Amendment when they make independent expenditures to advocate for the election
or defeat of candidates, and by independent expenditures, we don't say that they
can contribute money directly to candidate campaigns, but they are free to spend their own money to communicate with the public at large, and say we think you should
vote for this candidate or against this candidate
for these reasons, and that, I think, in a nutshell, is what the case is about
at that highest level. - [Sal] So, just to get a
little bit more into the case, it's really all around this
Bipartisan Campaign Reform Act, the McCain-Feingold Act of 2002. What was all that about,
and then how did that lead, eventually, to this Supreme Court decision of Citizens United versus
Federal Election Commission? - [Bradley] Well, in some
ways, it goes back much further than the Bipartisan Campaign Reform Act. We should note that Congress, in 1907, passed the first federal
statute that limited corporate contributions
to campaigns, right? But corporations quickly found out, well, we can just do expenditures. We don't contribute to the campaign. We just spend our own money,
but within this framework, both corporations and unions
could do a lot of things. For example, they could run
ads that said things like, you know, Congressman Jones
is a no-good, anti worker, worker line person who wants
to destroy American industry. Call Congressman Jones and tell him we don't need his agenda in Washington, and that didn't count as
a campaign expenditure, because it didn't specifically urge people to vote for or against a candidate. - [Rick] So, President Bush signed a law, President George W.
Bush, signed a law called the Bipartisan Campaign Reform Act, and this was in 2002, I believe it was, and it's commonly known as
the McCain-Feingold Law, because those are the
two big Senate sponsors, and the National Rifle Association, Senator McConnell, a bunch of people sued and argued it was unconstitutional. While the case was going
through the courts, the National Rifle Association,
which definitely has a political point of view, set
up a satellite radio station called NRA News, and they said oh, well, if news organizations can
engage in this unlimited kind of electoral activity, we'll just make ourselves
a news organization, and many people thought this
was going to be a kind of sham way of just running
political ads all the time. Well, what happened was that the NRA News actually started having news
programs, opinion programs, call-in programs, not
just on the election, but on issues that would matter to people who were sympathetic to the NRA, and it actually became a
bonafide news organization. - [Bradley] So, the McCain-Feingold Law, or the Bipartisan Campaign Reform Act, as it's officially known,
attempted to close this alleged or perceived loophole by saying okay, a corporation or a union
can't even mention a candidate in a broadcast ad within 60
days of a general election, or within 30 days of a primary election. So, enter a group called Citizens United. - [Rick] Citizens United
is an ideological group that is doing political
activities, still around, and they had made a documentary
called Hillary: The Movie. This was coming out at the time, not of the past election that we just had, but back in 2008, in that period when Hillary Clinton and Barack Obama were
going to be competing for the Democratic
nomination to be President, in the 2008 period, and Citizens United is
a nonprofit corporation. That is, they're not selling shoes. They're just using the corporate form to be able to engage in
associational activity, and there had already been a rule, well before the Supreme
Court had established, which said if you're an
ideological corporation, and you don't take money
from for-profit companies, you can already spend
whatever money you have in your treasury on political
ads and political activity, but Citizens United
deliberately took money from for-profit corporations,
and they did it because they were trying to set up a test case. What they wanted to do was
to take this documentary they had made, Hillary: The Movie, which said very negative
things about Hillary Clinton, and they wanted to pay Comcast
Cable a million dollars to make this movie available
as a video on demand, which anyone could watch
by choosing it from, you know, their cable guide. They'd be able to watch it, and under the federal statute, the Federal Election
Commission said this looks like it's going to be on television, broadcast in a period
close to the election, and it's going to feature
the name Hillary Clinton, who's a candidate for President, and that would make it an election ad. It cannot be paid for by corporate funds. There were lots of ways
that the Supreme Court could have gone, aside from
overturning earlier cases, but the court was bold here, and on a five to four vote, the liberals on the court
against the conservatives, the conservatives won, and the longstanding federal
prohibition on corporations and labor unions as well spending money in federal elections fell. - [Sal] So, just as kind
of a lay citizen, you know, on the face of it, I understand why there's all of this
Congressional legislation. You're afraid of undue
influence from corporations, but you know, we were able
to talk to a few experts who, I think, took a more sympathetic view to the Supreme Court
ruling, and their point was Citizens United was this organization. It definitely had an
ideological point of view, and it was making this content that was clearly anti-Hillary Clinton, but there's many organizations,
media organizations, you know, I think we could
point to news channels, websites, which most people would consider to be news organizations
or media organizations, that do definitely lean one way
or the other, left or right, and they're arguing that the reason why the Supreme Court had to rule this way is if what Citizens United wasn't allowed, then whether you're talking
about an MSNBC or a FOX News, that that would start
putting them under scrutiny. - [Rick] Well, the law that
limited what corporations can do created an exemption
for press organizations that were engaged in
journalistic kinds of activities, and indeed, the majority
on the courts said we have to treat them the same. - [Bradley] The justices
expressed real concern about the nature of the government's argument. They said, you know, you're saying you can limit broadcast ads,
but what about internet? Could you limit communications
about candidates over the internet? And the government attorneys
eventually said yes, we can. We can limit anything that
involves a corporation speaking about a candidate for office, whether it's on the internet or whatever, and by the time the
oral argument was over, the government had asserted
that it would have the right, for example, to limit
the publication of a book that included one line of advocacy urging people to vote for a candidate at the very end of a long,
you know, 500 page book. They had suggested that
they could prohibit a union from publishing a pamphlet that advocated the election of a candidate. You could envision, you know, a candidate, something like why working Americans should support, you know,
Hillary Clinton for President, or something like that. They had suggested that books over Kindle could be
banned under existing law, and so, the Supreme Court said alright, this is very problematic to us. They scheduled it for
a second oral argument, heard the case again, and
at the end of the case, said we don't think that this is right, at least a majority did, said you cannot limit the
speech of a group of people or a body simply because
it is incorporated. - [Rick] But there was an
argument of the dissenters that said the press is different. The press serves an educational
and informative function, which is different than the
function of other corporations, and it's permissible, maybe in
part because the Constitution does provide separate
protection for the press. There was a big debate
about what that means, to carve this out. Now, that does create an inconsistency. We'd be saying we're
gonna treat Google one way and FOX News and The
New York Times another, but the current law is also inconsistent, so let me give you an
example from the other side, which is think is very hard for those who support Citizens United to answer. In a case that came a couple
of years after Citizens United, there was a guy who was
a Canadian law student, then he became a lawyer in New York. He went to Harvard Law
School, worked in New York, and he was here on a work
visa, and he wanted to, according to his complaint that he filed, he wanted to go to
Kinko's and make flyers, spend 50 cents making flyers, saying re-elect President Obama, and he wanted to hand those
flyers out in Central Park. Well, because he was not a citizen, even though he's in the United
States and has other kinds of First Amendment rights,
even though he's not a citizen, he would violate federal law. He could go to jail for
years, face a $10,000 fine, if he hands that piece
of paper to one person, because then he'd be engaging
in election-related activity as a non-citizen, and this case went up and the Supreme Court had
a chance to explain why, as in Citizens United, if
the identity of the speaker doesn't matter in the
First Amendment, really, it's always about more speech
all the time in elections, why is it that this guy, Benjamin
Blumen, could be shut up? And the Supreme Court
didn't even hear the case. It came up on a special kind of appeal from a three-judge
court, which means that, when the court declined to hear the case, it agreed that the lower court was right, that this law is constitutional. So, we now have this new anomaly, which is that we say
that non-human entities, these corporations that
only exist because the state allows it to create this fake thing, non-human entities have
these First Amendment rights, but yet a human being who
was living in New York who wanted to spend 50
cents, he couldn't do that, and so, what's the difference, if it's really true that the identity of the speaker doesn't matter, which the Supreme Court
said to Citizens United? Well, certainly, the identity
of the speaker matters when that speaker is a foreign individual, or a foreign government,
or a foreign corporation. - [Sal] So, it seems like
the majority opinion, they're not saying that large corporations being able to funnel tens or
hundreds of millions of dollars for or against a campaign,
independently of the candidate, that that won't necessarily corrupt, but it's more of by trying to regulate it in the way that the
McCain-Feingold Act does, it actually has far-reaching consequences, or trying to regulate it in the way that the Federal Election Commission
was trying to regulate it with Citizens United, it has
far-reaching consequences that touch on just general
free speech issues, like what you just talked about, you know, a sentence in a book that
happens to be published or sold during the election, or a movie
made by a random filmmaker. - [Bradley] I think, for
one thing, for example, a lot of people, again, they resent to say that
corporations aren't people, but they don't realize
corporations have always, again, had some of these
rights, acted as corporations, and acted in the political
arena in a variety of ways, and I think that what these
people should ask themselves is, well, if Exxon were not incorporated, would they go oh, well,
Exxon's not incorporated. Well, that's fine, let them spend all the
money they want, right? And conversely, I find
most of these people, if you say, well, should
we be able to censor The New York Times? It's a corporation? They say well, no, no, no, not that, and when you see that, I
think it makes people realize the question is not really whether it's a corporation speaking or not. The question is whether or not we think the First Amendment protects
the expenditure of money. - [Rick] We actually had to have rules before Citizens United to differentiate, because, actually, this was the law, that Google and General Motors
could not spend their funds directly on election speech, but The New York Times and FOX News could, and so we had tests, and the Federal Election
Commission had tests, and there are just some
disagreements about how to best do it. I would point to the work
of Professor Sonja West at the University of Georgia, who has written extensively on this, and she said the test should be people who are regularly engaged in journalism. That doesn't mean it has to be objective and you can't have a point of view. It doesn't mean there's a
problem with FOX News or MSNBC, because they might have a point of view, but it means you're doing something other than electioneering. - [Bradley] I do think that,
yes, that's what I'm saying, that these are some of the
costs of having a vibrant, robust First Amendment, and if you want to give
the government the power to regulate, you know, books to movies, you should think about who's
the politician you most hate? Is it Hillary Clinton? Is it Donald Trump? Is it somebody else? Do you want them in charge of deciding who gets to speak out in
politics and in what way and in what fashion and what manner? And I think you should think
about it in those terms, and that sometimes makes people realize maybe it's best to let things go. Now, I would say,
however, having said that, that a lot of the arguments
about corporate influence are vastly overblown. There's quite a bit of debate, really, about whether or not
corporations, in fact, benefit from spending money on politics. Big corporations, you know,
the Fortune 500 types, what they really like to do
is spend money on lobbying. That's much more direct. They can talk to candidates directly. They can let other people elect folks. There's almost certain
to be some folks elected who they will like and they
can go work with those people and craft messages and bills, and they can do this
more behind the scenes, and that way, they don't have to offend any of their customers who don't like the party that they're supporting, but it's also clear
that just spending money doesn't automatically win the elections. You can look at the last
presidential election. I mean, Donald Trump spent, all totaled, about a quarter of what the
Hillary Clinton forces spent. It certainly helps to have money, but in the end, it's not dispositive. What the money does is it's
spent to try to inform voters, and those voters go out
and vote at the polls. - [Sal] So we've learned
that, in Citizens United, the Supreme Court ruled
that political spending by corporations,
associations, and labor unions is a form of protected speech
under the First Amendment, but whether or how the
government can limit free speech in campaign contributions
is still a matter of debate. As Rick Hasen notes, one
test for the difference between the free speech
rights accorded to journalists and those or corporations might
be whether they are entities regularly engaged in journalism, but as Bradley Smith points out, allowing the government to impose limits on how people or corporations
speak out in politics may lead to unintended consequences. To learn more about Citizens United, visit the National Constitution Center's Interactive Constitution,
and Khan Academy's resources on U.S. government and politics.