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Citizens United
© The Bill of Rights Institute
B
BACKGROUND ESSAY
Citizens United v. F.E.C., 2010
During his 2010 State of the Union address,
President Barack Obama did something very few
presidents have done: he openly challenged a
Supreme Court ruling in front of both chambers
of Congress and members of the Supreme
Court of the United States. That ruling, Citizens
United v. F.E.C.(2010),andthePresident’s
commentary on it, reignited passions on both
sides of a century-long debate: to what extent
does the First Amendment protect the variety
of ways Americans associate with one another
and the diverse ways we “speak,” “assemble,”
and participate in American political life? It is this
speech – political speech – that the Founders
knew was inseparable from the very concept of
self government.
Since the rise of modern “big business” in the
Industrial Age, Americans have expressed
concernsabouttheinuenceofcorporationsand
other “special interests” in our political system. In
1910 President Teddy Roosevelt called for laws
to “prohibit the use of corporate funds directly or
indirectly for political purposes…[as they supply]
one of the principal sources of corruption in our
political affairs.” Already having made such
corporate contributions illegal with the Tillman Act
of 1907, Roosevelt’s speech nonetheless prompted
Congress to amend this law to add enforcement
mechanisms with the 1910 Federal Corrupt
Practices Act. Future Congresses would enlarge
the sphere of “special interests” barred from direct
campaign contributions through – among others
-theHatchAct(1939),restrictingthepolitical
campaign activities of federal employees, and
theTaft-HartleyAct(1947),prohibitinglaborunions
from expenditures that supported or opposed
particular federal candidates.
Collectively, these laws formed the backbone of
America’scampaignnancelawsuntiltheywere
replaced by the Federal Elections Campaign
Acts(FECA)of1971and1974.FECAof1971
strengthened public reporting requirements of
campaignnancingforcandidates,political
partiesandpoliticalcommittees(PACs).TheFECA
of1974addedspeciclimitstotheamountof
money that could be donated to candidates by
individuals, political parties, and PACs, and also
what could be independently spent by people
who want to talk about candidates. It provided for
the creation of the Federal Election Commission,
an independent agency designed to monitor
campaigns and enforce the nation’s political
nancelaws.Signicantly,FECAleftmembers
of the media, including corporations, free to
comment about candidates without limitation,
even though such commentary involved spending
money and posed the same risk of quid pro quo
corruption as other independent spending.
In Buckley v. Valeo (1976), however, portions
of the FECA of 1974 were struck down by the
Supreme Court. The Court deemed that restricting
independent spending by individuals and groups
to support or defeat a candidate interfered
with speech protected by the First Amendment,
so long as those funds were independent of a
candidate or his/her campaign. Such restrictions,
the Court held, unconstitutionally interfered with
the speakers’ ability to convey their message
to as many people as possible. Limits on direct
campaign contributions, however, were
permissible and remained in place. The Court’s
rationale for protecting independent spending
was not, as is sometimes stated, that the Court
equated spending money with speech. Rather,
restrictions on spending money for the purpose
of engaging in political speech unconstitutionally
interfered with the First Amendment-protected
righttofreespeech.(TheCourtdidmentionthat
direct contributions to candidates could be seen
as symbolic expression, but concluded that they
were generally restrict-able despite that.)
The decades following Buckley would see a
great proliferation of campaign spending. By
2002, Congress felt pressure to address this
spending and passed the Bipartisan Campaign
FinanceReformAct(BCRA).Akeyprovision
of the BCRA was a ban on speech that was
deemed “electioneering communications”
– speech that named a federal candidate
within 30 days of a primary election or 60 days
of a general election that was paid for out of a
“specialinterest’s”generalfund(PACswereleft