On January 21, 2010, the Supreme Court overturned part of the Bipartisan Campaign Reform Act of 2002 (BCRA), better known as “McCain-Feingold.” The provision in question prohibits the use of general corporate funds, including those of nonprofit issue advocacy groups, to pay for an “electioneering communication” within 60 days before a general election or 30 days before a primary election. The case arose when a conservative advocacy group wanted to distribute “Hillary: The Movie,” a film critical of Senator Hillary Clinton, and run ads for it, within the restricted time periods in 2008.
A lower court had said that the movie was an “electioneering communication” with the aim of urging viewers to vote against Senator Clinton. The panel also required that ads for the film include disclosures, such as the following: “Citizens United is responsible for the content of this advertising.”
The Supreme Court ruled 5 to 4 that the law improperly prohibits the use of corporate funds for independent expenditures in political campaigns. The Supreme Court made clear that corporations may advocate the election or defeat of political candidates, overruling prior case law and portions of BCRA. Four Justices dissented. The ruling allows companies and labor unions to make independent expenditures freely in support of or in opposition to candidates, and is not limited to federal elections.
The majority rejected various arguments trying to distinguish this communication from the prohibitions of BCRA. Instead, it considered the validity of the statute on its face under the First Amendment. The law acts as the functional equivalent of a prior restraint on speech, since those who want to avoid criminal liability and defense costs must ask a government agency for permission to speak about candidates.
The Court overruled Austin, which had limited corporate independent expenditures for campaigns. The Act imposes an outright ban on speech, backed by criminal sanctions, and the government may not impose restrictions on certain disfavored speakers like corporations, which are protected by the First Amendment. First Amendment protections do not depend on the speaker’s financial ability to engage in public discussion. All speakers use money amassed from the economic marketplace to fund their speech. In addition, independent expenditures by corporations do not give rise to corruption or the appearance of corruption, and increased influence over or access to politicians does not mean those politicians are corrupt. “No sufficient governmental interest justifies limits on the political speech of nonprofit or for-profit corporations.”
Eight Justices upheld Sections 201 and 311, which impose disclaimer and disclosure requirements. Citizens United offered no evidence that its members face the type of threats, harassment or reprisals that might make the disclosure provision unconstitutional.
Justice Stevens’ dissent, joined by three others, warned that this decision would do damage to the Court and threatens to undermine the integrity of elected institutions across the Nation. He argued that there are other avenues left open for corporations to be involved in elections, such as through PACs, and that this law is just a source restriction or a time, place, and manner restriction.