Citizens United is a non-profit advocacy group that sued the Federal Election Commission for preventing the broadcast, in the months leading up to the 2008 election, of a political pay-per-view video they had produced. The case wound up in the U.S. Supreme Court and “Citizens United” became the shorthand description of the decision the Court made in that case, which was handed down in January, 2010.

Ted Olson

The case, Citizens United v. Federal Election Commission (FEC), centered on a purely technical issue related to “electioneering communication” that centered on messages aired on “broadcast, cable or satellite” radio and television. The lawyer for Citizens United, former Solicitor General Ted Olson, was asking for the FEC ruling to be overturned on purely technical grounds, based on the argument that the existing campaign finance law did not apply to movies broadcasts on pay-per-view, and that the disclosure requirements on ads for the movie didn’t apply because the ads did not represent “express advocacy” as defined in the Bipartisan Campaign Reform Act of 2002. As Jeffrey Toobin put it in his article for The New Yorker, “if the Justices had resolved the case as Olson had suggested, today Citizens United might well be forgotten — a narrow ruling on a remote aspect of campaign-finance law.”

Justice Kennedy

Instead, the line of questioning came around to including ALL forms of communication, including print, and led to an exchange between the Justices and the government’s lawyer (representing the FEC) that ended with Justice Kennedy asking, “Well, suppose it were an advocacy organization that had a book. Your position is that, under the Constitution, the advertising for this book or the sale for the book itself could be prohibited within the sixty- and thirty-day periods?”

The government’s lawyer allowed himself to be boxed-in by the line of questioning and, based on the reasoning he had presented to the Court up to that point, was forced to agree that the answer to that question was a qualified “yes.” That’s when an otherwise obscure and sleepy case–as Justice Scalia put it, a “statutory argument”–became the foundation for sweeping new case law that struck down much of the McCain-Feingold campaign finance law and overturned several Supreme Court precedents upholding the government’s power to place strict rules on electioneering expenditures. The majority of five justices repeatedly described statutory limits on the amount of money that can be spent as limits on speech, and refused to entertain the argument that outside groups are able to coordinate with candidate campaigns, holding instead that the mere existence of a separate entity, even one explicitly connected to a candidate and operated by the candidates friends, family members and allies (as many super PACs are), obviates any form of corruption or even appearance of corruption. The Citizens United ruling explicitly defined the spending of money as a form of constitutionally protected speech and expressly forbade the Federal Election Commission from enforcing spending limits on outside groups, even if the outside group is directly advocating for or against a particular candidate.

Super PACs emerged following the Appellate Court ruling in Speechnow.org v. FEC. From the FEC’s website:
The court of appeals held that when the government attempts to regulate the financing of political campaigns and express advocacy through contribution limits, it must have a countervailing interest that outweighs the limit’s burden on the exercise of First Amendment rights. In light of the Supreme Court’s recent decision in Citizens United v. FEC, in which the Supreme Court held that the government has no anti-corruption interest in limiting independent expenditures, the appeals court ruled that “contributions to groups that make only independent expenditures cannot corrupt or create the appearance of corruption.” As a result, the court of appeals held that the government has no anti-corruption interest in limiting contributions to an independent group such as SpeechNow. Contribution limits as applied to SpeechNow “violate the First Amendment by preventing [individuals] from donating to SpeechNow in excess of the limits and by prohibiting SpeechNow from accepting donations in excess of the limits.”

There are several points to note about the Citizens United case. First, the plaintiff, Citizens United, was not asking the Court to strike down any laws, but merely to correctly apply the existing law to their specific case. The fact that the line of questioning even came up suggests to many Supreme Court watchers that the Justices were looking for a way to expand the scope of the case, in an instance of what many critics describe as “judicial activism.” Second, while some critics describe this ruling as the origin of “corporate personhood,” the truth is that corporations have been accepted as “artificial persons” since the concept was confirmed in an early Supreme Court decision in the case of Dartmouth College v. Woodward in 1819. The term “artificial” has been gradually removed from the concept over many decades in a series of Supreme Court rulings that started with an erroneous headnote in another otherwise obscure case, Santa Clara County v. Southern Pacific Railroad, in 1886. The non-profit group, Citizens United, would not have been able to assert its own constitutional rights of free speech without those precedents.

Lastly, Citizens United did not create the concept of “money = speech,” or more properly stated, the spending of money as a form of constitutionally protected speech. That precedent was first hinted at in another Supreme Court ruling, Buckley v. Valeo, in 1976, and formally established as precedent in a later case, First National Bank of Boston v. Bellotti, in 1978. However, taken together, these rulings, and several others, laid the foundation for the ruling in the Citizens United case. Without the precedents established by those and several other Supreme Court decisions, the Justices on this Court would not have had the foundation upon which to rest their ruling in Citizens United.

Citizens United did not establish corporate personhood but it was grounded in corporate personhood. It did not establish the concept of money as speech, but was grounded in money as speech. Citizens United did not create the problem of extreme wealth acting as a corrupting influence on elections, it merely made it worse… much worse. And while it may not have led to massive donations to super PACs by corporations, it further recognized all artificial entities (including PACs and super PACs, for-profit corporations, non-profits, unions, NGOs and more) as effectively “natural” persons with constitutional rights.

The reason so many people are upset by this ruling is that it shouldn’t be as easy as going to LegalZoom to create an immortal artificial entity that has all the immunities of limited liability plus the same unalienable rights as living, breathing citizens, without any of the responsibilities or penalties that ordinary people can face when they violate the law. People opposed to the Citizens United ruling believe individual rights should be, and traditionally have been, preeminent in the U.S. Constitution. As a matter of principle, this is neither a conservative nor a liberal position — it is a Constitutional truth that the Supreme Court has been steadily eroding for more than 120 years. If that isn’t judicial activism, the phrase has no meaning.

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9 Comments

  1. Clayton Smith

    The Problem: Washington DC (all three branches of the federal government)
    The Solution as big as the Problem: Article V of the US Constitution…

    http://www.ConventionofStates.com

    The Founders saw this day coming and they gave us a tool contained in Article V to empower the states to reign in the federal government. We can either get involved today; or we can think about what we’re going to say to our children and grandchildren when they look back and have to ask, “What did you do to try and save our country?” Don’t be one of those who stood by and did nothing.

    Reply
    • Lantz Hastings

      INFOWARS.COM

      Reply
    • lantz

      Well that corruption runs all the way down to state level… so what have you to say about that?

      Reply
  2. Mary Garcia

    After reading this im still unsure what citizens united is or stands for. I have received petitions to sign against citizens united, but will not until I completely understand what it stands for. I do understand that groups have a way of twisting things/words to there favor. Could you please explain to me what citizens united stands for and thank you.

    Reply
    • Grace

      I thought the same thing as you….here is an interesting article that I found helpful.
      http://www.demos.org/publication/top-5-ways-citizens-united-harms-democracy-top-5-ways-we%E2%80%99re-fighting-take-democracy-back
      Of course, anything that is read, is written by someone…and who knows how much bias is in the article.

      Reply
    • Georgie

      It means the’ good ol’ boy’ system the Republicans use to keep feeding each other money is legally accepted. Individuals donating have a cap- a certain $ amount they cannot exceed, but as part of a PAC or super PAC, those same individuals can give yet more $ legally thru those PACs…it’s a way to get around the laws governing the individual caps! With a few exceptions, The rich think they are entitled, due to money and ego, to set the rules for the rest of (us) American citizens, and are themselves exempt from laws that govern the rest of the world! They just want to build their bank accounts, at any cost, they don’t worry about ‘others’ or the earth!

      Reply
    • MeToo

      Me too, Mary.
      Thanks.

      Reply
    • Paul Westlake Paul Westlake

      If you’re asking what the non-profit group, Citizens United, “stands for,” as in what their agenda is, you can read all about it on their website. Just google it. If you’re asking what the term, Citizens United, stands for, as in what it means on all those petitions people ask you to sign, it is the Supreme Court decision of January, 2010, that struck down large portions of federal and state campaign finance regulations, giving rise to the invention of the “super PAC.” Super PACs are used as a means of funneling big money from outside groups, corporations, wealthy individuals and even foreign interests into the American political process. It is the anonymity that results from the lack of reporting requirements that allow foreign interests to avoid detection and get around the long-standing federal law that bars foreign interests from contributing to political campaigns in America. Politics and elections were far from perfect before the Citizens United ruling, but the pay-for-play culture of Washington (and the states) was given a high octane boost with Citizens United and subsequent cases (like McCutcheon v. FEC). The reason so many people believe we need a constitutional amendment is because the ruling hinged on an illogically expansive interpretation of the First and Fourteenth Amendments.

      Reply
  3. robert

    I don’t understand what the big deal is. Campaign finance laws seem like a waste of time and effort. Let people, corporations, whoever, dump as much money as they want into elections. I for one get sick and tired of seeing and hearing commercials. I tune them out every time. I don’t seriously believe that people vote on their candidate because they had more commercials. The way I see it, let them dump tons of money into losing campaigns. The candidate should not be allowed to keep it. Just make sure all the money that is donated gets spent. It will benefit the economy.

    Reply

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