Overruling two important precedents about the First Amendment rights of corporations, a bitterly divided Supreme Court on Thursday ruled that the government may not ban political spending by corporations in candidate elections.
Reuters, left; Bloomberg
Justices Anthony M. Kennedy and John Paul Stevens, right.
The 5-to-4 decision was a vindication, the majority said, of the
First Amendment’s most basic free speech principle — that the
government has no business regulating political speech. The dissenters
said that allowing corporate money to flood the political marketplace
would corrupt democracy.
The ruling represented a sharp
doctrinal shift, and it will have major political and practical
consequences. Specialists in campaign finance law said they expected
the decision to reshape the way elections were conducted. Though the
decision does not directly address them, its logic also applies to the
labor unions that are often at political odds with big business.
decision will be felt most immediately in the coming midterm elections,
given that it comes just two days after Democrats lost a filibuster-proof majority in the Senate and as popular discontent over government bailouts and corporate bonuses continues to boil.
called it “a major victory for big oil, Wall Street banks, health
insurance companies and the other powerful interests that marshal their
power every day in Washington to drown out the voices of everyday
The justices in the majority brushed aside warnings
about what might follow from their ruling in favor of a formal but
fervent embrace of a broad interpretation of free speech rights.
“If the First Amendment has any force,” Justice Anthony M. Kennedy
wrote for the majority, which included the four members of the court’s
conservative wing, “it prohibits Congress from fining or jailing
citizens, or associations of citizens, for simply engaging in political
The ruling, Citizens United v. Federal Election Commission, No. 08-205, overruled two precedents: Austin v. Michigan Chamber of Commerce, a 1990 decision that upheld restrictions on corporate spending to support or oppose political candidates, and McConnell v. Federal Election Commission, a 2003 decision that upheld the part of the Bipartisan Campaign Reform Act of 2002 that restricted campaign spending by corporations and unions.
2002 law, usually called McCain-Feingold, banned the broadcast, cable
or satellite transmission of “electioneering communications” paid for
by corporations or labor unions from their general funds in the 30 days
before a presidential primary and in the 60 days before the general
The law, as narrowed by a 2007 Supreme Court decision,
applied to communications “susceptible to no reasonable interpretation
other than as an appeal to vote for or against a specific candidate.”
The five opinions in Thursday’s decision ran to more than 180 pages, with Justice John Paul Stevens
contributing a passionate 90-page dissent. In sometimes halting
fashion, he summarized it for some 20 minutes from the bench on
Joined by the other three members of the
court’s liberal wing, Justice Stevens said the majority had committed a
grave error in treating corporate speech the same as that of human
Eight of the justices did agree that Congress can
require corporations to disclose their spending and to run disclaimers
with their advertisements, at least in the absence of proof of threats
or reprisals. “Disclosure permits citizens and shareholders to react to
the speech of corporate entities in a proper way,” Justice Kennedy
wrote. Justice Clarence Thomas dissented on this point.
majority opinion did not disturb bans on direct contributions to
candidates, but the two sides disagreed about whether independent
expenditures came close to amounting to the same thing.
difference between selling a vote and selling access is a matter of
degree, not kind,” Justice Stevens wrote. “And selling access is not
qualitatively different from giving special preference to those who
spent money on one’s behalf.”
Justice Kennedy responded that “by
definition, an independent expenditure is political speech presented to
the electorate that is not coordinated with a candidate.”
case had unlikely origins. It involved a documentary called “Hillary:
The Movie,” a 90-minute stew of caustic political commentary and
advocacy journalism. It was produced by Citizens United, a conservative
nonprofit corporation, and was released during the Democratic
presidential primaries in 2008.
Citizens United lost a suit that
year against the Federal Election Commission, and scuttled plans to
show the film on a cable video-on-demand service and to broadcast
television advertisements for it. But the film was shown in theaters in
six cities, and it remains available on DVD and the Internet.
majority cited a score of decisions recognizing the First Amendment
rights of corporations, and Justice Stevens acknowledged that “we have
long since held that corporations are covered by the First Amendment.”
Justice Stevens defended the restrictions struck down on Thursday as
modest and sensible. Even before the decision, he said, corporations
could act through their political action committees or outside the
specified time windows.
The McCain-Feingold law contains an
exception for broadcast news reports, commentaries and editorials. But
that is, Chief Justice John G. Roberts Jr. wrote in a concurrence joined by Justice Samuel A. Alito Jr., “simply a matter of legislative grace.”
Kennedy’s majority opinion said that there was no principled way to
distinguish between media corporations and other corporations and that
the dissent’s theory would allow Congress to suppress political speech
in newspapers, on television news programs, in books and on blogs.
Stevens responded that people who invest in media corporations know
“that media outlets may seek to influence elections.” He added in a
footnote that lawmakers might now want to consider requiring
corporations to disclose how they intended to spend shareholders’ money
or to put such spending to a shareholder vote.
On its central point, Justice Kennedy’s majority opinion was joined by Chief Justice Roberts and Justices Alito, Thomas and Antonin Scalia. Justice Stevens’s dissent was joined by Justices Stephen G. Breyer, Ruth Bader Ginsburg and Sonia Sotomayor.
the case was first argued last March, it seemed a curiosity likely to
be decided on narrow grounds. The court could have ruled that Citizens
United was not the sort of group to which the McCain-Feingold law was
meant to apply, or that the law did not mean to address 90-minute
documentaries, or that video-on-demand technologies were not regulated
by the law. Thursday’s decision rejected those alternatives.
it addressed the questions it proposed to the parties in June when it
set down the case for an unusual second argument in September, those of
whether Austin and McConnell should be overruled. The answer, the court
ruled Thursday, was yes.
“When government seeks to use its full
power, including the criminal law, to command where a person may get
his or her information or what distrusted source he or she may not
hear, it uses censorship to control thought,” Justice Kennedy wrote.
“This is unlawful. The First Amendment confirms the freedom to think
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