What Is Citizens United?

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 “electronic communication,” which is defined in the law as messages broadcast on 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 broadcasts on pay-per-view. 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, electronic or not, 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.

There are several points to note about this 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.

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 codified all legal fictions (including PACs, for-profits, non-profits, unions, NGOs, incorporated cities and more) as “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 same unalienable rights (but none of the same responsibilities) as living, breathing citizens. 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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