In this new series, we will attempt to explore the main characters evolving around the 2010 Citizens United v. FEC Supreme Court decision. Each “card” will represent a character who symbolize one aspect of the Citizen United case.

These characters in fact are either directly linked to the case or are acting against or in favor of it. The full consequences of that decision still have to be determined as the 2012 Presidential campaign is still very much in its beginning. Yet, we can already evaluate the tremendous impact that Super PACs have on campaigns and political communication.

KARL ROVE | Political Consultant, Founder of American Crossroads

The former Senior Advisor and Deputy Chief of Staff of the Bush administration is a long time conservative figure. He’s currently adviser and board member of American Crossroads, a 527 organization that has raised and spent tens of millions of dollars to defend and elect Republican candidates to federal office.

According to Opensecret.org,

American Crossroads is a conservative group spearheaded by top Republican operatives. Karl Rove, the former top strategist for President George W. Bush, and former Republican National Committee Chairman Ed Gillespie encouraged the group’s formation and solicited donors for funds. Formed in 2010, American Crossroads initially reported its activities to the Internal Revenue Service as a so-called 527 organization. After the SpeechNow.org v. Federal Election Commission federal court rule, which allowed outside groups that expressly advocate for or against federal candidates to raise unlimited sums of money from corporations, unions and individuals, American Crossroads registered with the FEC as an independent expenditure-only committee, better than as a super PAC. Steven Law — who previously worked in Bush’s Labor Department, served as Kentucky Republican Sen. Mitch McConnell’s chief of staff, was the executive director of the National Republican Senatorial Committee and served as the U.S. Chamber of Commerce’s general counsel — heads the group. It regularly disclosed its donors, but Crossroads Grassroots Policy Strategies, a spin-off registered with the IRS as a 501(c)4 nonprofit group, does not.

See the numbers here

American Crossroads is very active during this Presidential Campaign and since the Republican Primaries are over, the organization starts to attack Mitt Romney’s opponent, Barack Obama.

According to Politico reporter Robin Bravender,

The Karl Rove-backed super PAC American Crossroads picked up steam in fundraising last month, raking in $4.6 million and stockpiling nearly $30 million to use against President Barack Obama and other Democrats. American Crossroads raised more in May than it has in any month since January after raising less than $2 million in both March and April. But despite the slight dropoff in recent months, the super PAC has continued to grow its cash reserves by spending relatively little.
Read more on politico.com

Part of the Rove’s organization, Crossroads Grassroots Policy Strategies (Crossroads GPS) is a 501(c)(4) nonprofit corporation that works in conjunction with American Crossroads. As a 501(c)(4) nonprofit, Crossroads GPS’s primary purpose is the advancement of social welfare including public policy advocacy, although it is permitted to engage in political spending as well. Crossroads GPS is required to report what it spends, but it is not required to publicly disclose any donor information.

Mid june 2012, in a letter to Crossroads — and a complaint to the Federal Elections Commission — the president’s lawyer, Robert F. Bauer, demanded that Crossroads divulge its donors because it is a political committee and not, as it calls itself, a “social welfare” organization.

The GOP-aligned group Crossroads GPS has spent $7 million to air a new ad attacking President Barack Obama for “growing our debt faster than our economy.”

The ad, called “Stopwatch,” begins airing in 10 states on Tuesday night. It is part of a $25 million effort to focus national attention on jobs, the economy, taxes and debt. (Read more on the Huffington Post)

Next Post: Stephen Colbert

In this new series, we will attempt to explore the main characters evolving around the 2010 Citizens United v. FEC Supreme Court decision. Each “card” will represent a character who symbolize one aspect of the Citizen United case.

These characters in fact are either directly linked to the case or are acting against or in favor of it. The full consequences of that decision still have to be determined as the 2012 Presidential campaign is still very much in its beginning. Yet, we can already evaluate the tremendous impact that Super PACs have on campaigns and political communication.

BARACK OBAMA | 44th President of the United States 

As a politician, Barack Obama faces the same constraints when it comes to the elections. The 44th President of the U.S needs to raise money if he hopes to win the general election in November. Problem, a week after the Citizens United decision, during the State of the Union Presidential address, Barack Obama clearly stated that he was against the Supreme Court justices ruling:

“Last week, the Supreme Court reversed a century of law to open the floodgates for special interests — including foreign companies — to spend without limit in our elections,” Obama said tonight. “Well, I don’t think American elections should be bankrolled by America’s most powerful interests, and worse, by foreign entities. They should be decided by the American people, and that’s why I’m urging Democrats and Republicans
to pass a bill that helps to right this wrong.” (Read mor on L.A Times)

As a result, in May 2012,

The pro-Barack Obama super PAC Priorities USA Action is still struggling to keep up with GOP super PACs preparing to unleash millions of dollars in independent advertisements.

Priorities USA Action raised $1.6 million in April, according to federal records released late Sunday. It’s the smallest haul the group has pulled in since the meager $59,000 the group raised in January. (Read More)

Not surprisingly, wealthy liberal donors are reluctant to give to a Super PAC the President himself didn’t backed in the first place. His strategy is to adapt the successful 2008 grassroot campaign to the needs of the 2012 election, focusing on getting people involved more than high-dollar fundraiser.

At the end of the day, these efforts to raise money will probably make Barack Obama the first Billion dollar President (in terms of campaign money).

In this new series, we will attempt to explore the main characters evolving around the 2010 Citizens United v. FEC Supreme Court decision. Each “card” will represent a character who symbolize one aspect of the Citizen United case.

These characters in fact are either directly linked to the case or are acting against or in favor of it. The full consequences of that decision still have to be determined as the 2012 Presidential campaign is still very much in its beginning. Yet, we can already evaluate the tremendous impact that Super PACs have on campaigns and political communication.

JOHN G. ROBERTS | 17th Chief Justice of the United States

John G. Roberts can certainly be considered as the architect behind the Citizens United v. FEC decision. As Jeffrey Toobin explains in The New Yorker on May 21, 2012 :

When Citizens United v. Federal Election Commission was first argued before the Supreme Court, on March 24, 2009, it seemed like a case of modest importance. The issue before the Justices was a narrow one When Citizens United v. Federal Election Commission was first argued before the Supreme Court, on March 24, 2009, it seemed like a case of modest importance. (…) Citizens United is a distinctive product of the Roberts Court. The decision followed a lengthy and bitter behind-the-scenes struggle among the Justices that produced both secret unpublished opinions and a rare reargument of a case. The case, too, reflects the aggressive conservative judicial activism of the Roberts Court.
(Read more)

John G. Roberts was nominated by former President Georges W. Bush on September 29, 2005 after Chief Justice William H. Rehnquist died on September 3, 2005.

During his confirmation hearings, Roberts said that he did not have a comprehensive jurisprudential philosophy, and he did “not think beginning with an all-encompassing approach to constitutional interpretation is the best way to faithfully construe the document”. Roberts analogized judges to baseball umpires: “It’s my job to call balls and strikes, and not to pitch or bat.”

This Originalist approach of the law contrast with the method and the view expressed by John G. Roberts in the Citizens United decision. This questions the position of the Supreme Court and the influence of John G. Roberts :

They feel that the Court was not playing fair in characterizing precedents. This cynicism is precisely what Chief Justice Roberts pledged to avoid when he was elevated to the High Court. As someone who continues to wish the Chief Justice well, I hope that he will in time achieve his original vision of collegiality and minimalism. To do so, the Court must characterize precedents in terms all of the Justices can accept. ( Jeffrey Rosen, Harvard Journal of Law & Public Policy)

No doubt that the Citizens United v. FEC decision is the result of Roberts and subsequently Justice Anthony Kennedy’s vision. The impact on the elections – the locals, States, or Federal ones – would have been much less.

Next post : Barack Obama

How does the Citizens United ruling impact state campaign finance laws?

How will the Supreme Court decision (Citizens United v Federal Election Commission) affect campaign finance laws in the 50 states? This video explains the laws as they are, and how they might change.

Read more

Keith Olbermann on on “Citizens United v. Federal Election Commission”

Today, the Supreme Court, of Chief Justice John Roberts, in a decision that might actually have more dire implications than “Dred Scott v Sandford,” declared that because of the alchemy of its 19th Century predecessors in deciding that corporations had all the rights of people, any restrictions on how these corporate-beings spend their money on political advertising, are unconstitutional.

In short, the first amendment — free speech for persons — which went into affect in 1791, applies to corporations, which were not recognized as the equivalents of persons until 1886. In short, there are now no checks on the ability of corporations or unions or other giant aggregations of power to decide our elections.

None. They can spend all the money they want. And if they can spend all the money they want — sooner, rather than later — they will implant the legislators of their choice in every office from President to head of the Visiting Nurse Service. …

Influence Of Corporate Money On Elections w/ Zach Carter | Sources: The Young Turk – Media 99%

War chests from right-wing billionaires and corporate titans are funding tremendous portions of political activity, from the so-called grassroots activism of the Tea Party to the streamlined lobbying assaults of the nation’s largest corporations.

In the aftermath of the Supreme Court’s wildly unpopular ruling in Citizens United v. Federal Elections Commission, secret election financing by elites is exploding, even as the public visibility of such electoral purchasing power evaporates.

Read more on Media 99%

Poll: Americans Hate Corporate Money In Elections | Source: The Young Turks – The Huffington Post

In the wake of the Supreme Court ruling that corporations can spend an unlimited amount of money on political campaigns, the landscape has grown ripe for the passage of strict campaign finance legislation.

Support is incredibly high for reforms currently being considered by Congress to stem the tide of corporate involvement in elections, according to a poll released on Monday by a bipartisan group of firms.

From the study released by Greenberg Quinlan Rosner Research in conjunction with McKinnon Media for Common Cause, Change Congress and the Public Campaign Action Fund:

“A majority of voters strongly favor both requiring corporations to get shareholder approval for political spending (56 percent strongly favor, 80 percent total favor) and a ban on political spending by foreign corporations (51 percent strongly favor, 60 percent total favor).”

Read more on the Huffington Post

At least $250mn has been spent on the US elections for both the Democrat and Republican parties.
Al Jazeera’s Rosiland Jordan in Denver explains why watchdog groups in the US argue that too much money is corrupting the way a president is chosen.

Races for non-federal offices are governed by state and local law. Over half the states allow some level of corporate and union contributions. Some states have limits on contributions from individuals that are lower than the national limits, while four states (Missouri, Oregon, Utah and Virginia) have no limits at all.^[1] This article deals primarily with campaigns for federal office.

Campaign finance is a controversial issue, pitting concerns about free speech against concerns about corruption and inequality on the part of those who favor existing or further restrictions.

Campaign Finance Numbers

In 2008—the last presidential election year—candidates for office, political parties, and independent groups spent a total of $5.3 billion on federal elections.^[2] The amount spent on the presidential race alone was $2.4 billion,^[3] and over $1 billion of that was spent by the campaigns of the two major candidates: Barack Obama spent $730 million in his election campaign, and John McCain spent $333 million.^[4]

In the 2010 midterm election cycle, candidates for office, political parties, and independent groups spent a total of $3.6 billion on federal elections. The average winner of a seat in the House of Representatives spent $1.4 million on his or her campaign. The average winner of a Senate seat spent $9.8 million.^[5]

The money for campaigns for federal office comes from four broad categories of sources: (1) small individual contributors (individuals who contribute $200 or less), (2) large individual contributors (individuals who contribute more than $200), (3) political action committees, and (4) self-financing (the candidate’s own money). In the 2010 Congressional races, the sources of campaign contributions broke down as follows:^[6]

Sources of Campaign Funding

Federal contribution limits

Federal law restricts how much individuals and organizations may contribute to political campaigns, political parties, and other FEC-regulated organizations. Corporations and unions are barred from donating money directly to candidates or national party committees.^[7]

Bundling

One consequence of the limitation upon personal contributions from any one individual is that campaigns seek out “bundlers”—people who can gather contributions from many individuals in an organization or community and present the sum to the campaign. Campaigns often recognize these bundlers with honorary titles and, in some cases, exclusive events featuring the candidate.

Although bundling existed in various forms since the enactment of the FECA, bundling became organized in a more structured way in the 2000s, spearheaded by the “Bush Pioneers” for George W. Bush’s2000 and 2004 presidential campaigns. During the 2008 campaign the six leading primary candidates (three Democratic, three Republican) had listed a total of nearly two thousand bundlers.^[14]

Lobbying

Lobbyists often assist congresspersons with campaign finance by arranging fundraisers, assembling PACs, and seeking donations from other clients. Many lobbyists become campaign treasurers and fundraisers for congresspersons.^[15][16][17]

Campaign Spending By Outside Organizations

Organizations other than individual campaigns also contribute to election spending. In addition to donating money to political campaigns (according to the limits described above), these organizations can spend money directly to influence elections.

Political Action Committees

Federal law allows for multiple types of Political Action Committees.

• Connected PACS: The Bipartisan Campaign Reform Act prohibits corporations and labor unions from making direct contributions or expenditures in connection with federal elections. These organizations may, however, sponsor a “separate segregated fund” (SSF),^[18] known as a “connected PAC.” These PACs may receive and raise money only from a “restricted class,” generally consisting of managers and shareholders in the case of a corporation and members in the case of a union or other interest group. In exchange, the sponsor of the PAC may absorb all the administrative costs of operating the PAC and soliciting contributions.^[19] As of January 2009, there were 1,598 registered corporate PACs, 272 related to labor unions and 995 to trade organizations.^[20]

• Nonconnected PACs: A nonconnected PAC is financially independent, meaning that it must pay for its own administrative expenses using the contributions it raises. Although an organization may financially support a nonconnected PAC, these expenditures are considered contributions to the PAC and are subject to the dollar limits and other requirements of the Act.^[21]

• Leadership PACs: Elected officials and political parties cannot give more than the federal limit directly to candidates. However, they can set up a Leadership PAC that makes independent expenditures. Provided the expenditure is not coordinated with the other candidate, this type of spending is not limited.^[22] Under the FEC rules, leadership PACs are non-connected PACs, and can accept donations from individuals and other PACs. Since current officeholders have an easier time attracting contributions, Leadership PACs are a way dominant parties can capture seats from other parties. A leadership PAC sponsored by an elected official cannot use funds to support that official’s own campaign. However, it may fund travel, administrative expenses, consultants, polling, and other non-campaign expenses.^[23][24][25] Between 2008 and 2009, leadership PACs raised and spent more than $47 million.^[26]

• “Super PACs”: The 2010 election marked the rise of a new political committee, dubbed the “super PAC”. They are officially known as “independent-expenditure only committees,” because they may not make contributions to candidate campaigns or parties, but rather must do any political spending independently of the campaigns. Provided they are operated correctly, they can raise funds from corporations, unions and other groups, and from individuals, without legal limits.^[27] Super PACs were made possible by two judicial decisions. First, in January 2010 the U.S. Supreme Court held inCitizens United v. Federal Election Commission that government may not prohibit unions and corporations from making independent expenditure for political purposes. Two months later, in Speechnow.org v. FEC, the Federal Court of Appeals for the D.C. Circuit held that contributions to groups that only make independent expenditures could not be limited in the size and source of contributions to the group.^[28]

501(c)(4) Organizations

501(c)(4) organizations are generally civic leagues and other corporations operated exclusively for the promotion of social welfare, or local associations of employees with membership limited to a designated company or people in a particular municipality or neighborhood, and with net earnings devoted exclusively to charitable, educational, or recreational purposes.^[29] Unlike 501(c)(3) charitable organizations, they may also participate in political campaigns and elections, as long as the organization’s “primary purpose” is the promotion of social welfare and not political advocacy.^[30] 501(c)(4) organizations are not required to disclose their donors publicly.^[31] This aspect of the law has led to extensive use of 501(c)(4) organizations in raising and donating money for political activity.^[32]

The use of 501(c)(4) organizations for political advocacy has contributed to the sharp rise in outside spending that occurs without disclosure of donors, from 1.3% of outside spending in 2006 to 44% of outside spending in 2010.^[33] Under current law, some 501(c)(4) organizations may be legally required to to register as political committees and disclose their donors, but partisan deadlock at the FEC prevents enforcement action on this issue.^[34]

527 Organizations

A 527 organization or 527 group is a type of American tax-exempt organization named after “Section 527″ of the U.S. Internal Revenue Code. Technically, almost all political committees, including state, local, and federal candidate committees, traditional political action committees, “Super PACs“, and political parties are “527s.” However, in common practice the term is usually applied only to such organizations that are not regulated under state or federal campaign finance laws because they do not “expressly advocate” for the election or defeat of a candidate or party. When operated within the law, there are no upper limits on contributions to 527s and no restrictions on who may contribute. There are no spending limits imposed on these organizations. However, they must register with the IRS, publicly disclose their donors and file periodic reports of contributions and expenditures.^[35]

Political parties

Political party committees may contribute funds directly to candidates, subject to the contribution limits listed above. National and state party committees may make additional “coordinated expenditures,” subject to limits, to help their nominees in general elections. National party committees may also make unlimited “independent expenditures” to support or oppose federal candidates. However, since 2002, national parties have been prohibited from accepting any funds outside the limits established for elections in the FECA.

Disclosure Rules

Current campaign finance law at the federal level requires candidate committees, party committees, and PACs to file periodic reports disclosing the money they raise and spend. Federal candidate committees must identify, for example, all PACs and party committees that give them contributions, and they must provide the names, occupations, employers and addresses of all individuals who give them more than $200 in an election cycle. Additionally, they must disclose expenditures to any individual or vendor. The Federal Election Commission maintains this database and publishes the information about campaigns and donors on its web site. (Similar reporting requirements exist in many states for state and local candidates and for PACs and party committees.)

History of Federal Campaign Finance Reform

Early History of Campaign Finance Reform

Federal Election Campaign Act

In 1971, Congress passed the Federal Election Campaign Act (FECA), instituting various campaign finance disclosure requirements for federal candidates (those running for the House, the Senate, the President and the Vice President), political parties, and political action committees. In 1974, Congress passed amendments to the FECA establishing a comprehensive system of regulation and enforcement, including public financing of presidential campaigns and the creation of a central enforcement agency, the Federal Election Commission. The new regulations included limits on campaign finance, including caps on (1) individual contributions to candidates, (2) contributions to candidates by “political committees” (commonly known as Political Action Committees, or PACs), (3) total campaign expenditures, and (4) independent expenditures by individuals and groups “relative to a clearly identified candidate.”

The constitutionality of the FECA was challenged in the U.S. Supreme Court case Buckley v. Valeo (1976). In Buckley, the Court upheld the Act’s limits on individual contributions, as well as the disclosure and reporting provisions and the public financing scheme. The Court held that limitations on donations to candidates were constitutional because of the compelling state interest in preventing corruption or the appearance of corruption. However, the Court also held that caps on the amount campaigns could spend and caps on independent expenditures were an unconstitutional abridgment of free speech under theFirst Amendment. In addition, Buckley also held that the disclosure and reporting requirements of FECA could only apply to expenditures authorized or requested by a candidate or expenditures for communications that “expressly advocate the election or defeat of a clearly identified candidate.”

Bipartisan Campaign Reform Act

Under FECA, corporations, unions, and individuals could contribute unlimited “nonfederal money”—also known as “soft money”—to political parties for activities intended to influence state or local elections. In a series of advisory opinions between 1977 and 1995, the FEC ruled that political parties could fund “mixed-purpose” activities—including get-out-the-vote drives and generic party advertising—in part with soft money, and that parties could also use soft money to defray the costs of “legislative advocacy media advertisements,” even if the ads mentioned the name of a federal candidate, so long as they did not expressly advocate the candidate’s election or defeat.^[36] Furthermore, in 1996, the Supreme Court decided Colorado Republican Federal Campaign Committee v. FEC’, in which the Court ruled that Congress could not restrict the total amount of “independent expenditures” made by a political party without coordination with a candidate, invalidating a FECA provision that restricted how much a political party could spend in connection with a particular candidate.^[37] As a result of these rulings, soft money effectively enabled parties and candidates to circumvent FECA’s limitations on federal election contributions.^[38]

Soft money raised between 1993–2002

In 2002, Congress further attempted to reform federal campaign financing with the Bipartisan Campaign Reform Act. The BCRA, sometimes called the “McCain-Feingold” Act, amended the FECA in several respects. First, it prohibited national political party committees from soliciting or spending any soft money and prohibited state and local party committees from using soft money for activities that affect federal elections. Second, it prohibited the use of corporate and union treasury funds to pay for “electioneering communications”—broadcast or cable advertisements clearly identifying a federal candidate—within 30 days of a primary or 60 days of a general election. The law also included a “stand by your ad” provision requiring candidates to appear in campaign advertisements and claim responsibility for the ad (most commonly with a phrase similar to “I’m John Smith and I approve this message.”)

This law was also challenged in the Supreme Court, but its core provisions were upheld by the Supreme Court in McConnell v. Federal Election Commission. However, in McConnell, the Court also interpreted the “electioneering communications” provisions of BCRA to exempt “nonprofit corporations that [1] were formed for the sole purpose of promoting political ideas, [2] did not engage in business activities, and [3] did not accept contributions from for-profit corporations or labor unions.” Thus, non-business, non-profit political organizations could run electioneering advertisements provided that they did not accept corporate or union donations.

Furthermore, the BCRA did not regulate “527 organizations” (named for the section of the tax code under which they operate). These nonprofit organizations are not regulated by the FEC, provided that they do not coordinate with candidates or expressly advocate for the election or defeat of a specific candidate. After the passage of the BCRA, many of the soft money-funded activities previously undertaken by political parties were taken over by various 527 groups, which funded many issue ads in the 2004 presidential election. The heavy spending of key 527 groups to attack presidential candidates brought complaints to the Federal Elections Commission of illegal coordination between the groups and rival political campaigns. (In 2006 and 2007 the FEC fined a number of organizations, including MoveOn.org andSwift Boat Veterans for Truth, for violations arising from the 2004 campaign. The FEC’s rationale was that these groups had specifically advocated the election or defeat of candidates, thus making them subject to federal regulation and its limits on contributions to the organizations.)^[40]

The reach of the “electioneering communications” provisions of the BCRA was also limited in the 2007 Supreme Court ruling Federal Election Commission v. Wisconsin Right to Life, Inc. In Wisconsin Right to Life, the Supreme Court stated that the restrictions on “electioneering communications” applied only to advertisements that “can only reasonably be viewed as advocating or opposing a candidate.” Thus, if there was any reasonable way to view an advertisement as an “issue ad,” it would be exempt from the BCRA’s restrictions.

Citizens United and SpeechNow

Campaign finance law in the United States changed drastically in the wake of two 2010 judicial opinions: the Supreme Court’s decision in Citizens United v. FEC and the D.C. Circuit Court of Appeals decision in SpeechNow.org v. FEC.^[41] According to a 2011 Congressional Research Service report, these two decisions constitute “the most fundamental changes to campaign finance law in decades.” ^[42]

Citizens United struck down, on free speech grounds, the limits on the ability of organizations that accepted corporate or union money from running electioneering communications. The Court reasoned that the restrictions permitted by Buckley were justified based on avoiding corruption or the appearance of corruption, and that this rationale did not apply to corporate donations to independent organizations.Citizens United overruled the 1990 case Austin v. Michigan Chamber of Commerce, in which the Supreme Court upheld that the Michigan Campaign Finance Act, which prohibited corporations from using treasury money to support or oppose candidates in elections.

Two months later, a unanimous nine-judge panel of the U.S. Court of Appeals for the D.C. Circuit decided SpeechNow, which relied on Citizens United to hold that Congress could not limit donations to organizations that only made independent expenditures, that is, expenditures that were “uncoordinated” with a candidate’s campaign. These decisions led to the rise of “independent-expenditure only” PACs, commonly known as “Super PACs.” Super PACs, under Citizens United and SpeechNow, can raise unlimited funds from individual and corporate donors and use those funds for electioneering advertisements, provided that the Super PAC does not coordinate with a candidate.

Efforts to Strengthen Campaign Finance Laws

Developments after Buckley

In 1986, several bills were killed in the U.S. Senate by bipartisan maneuvering which did not allow the bills to come up for a vote. The bills would impose strict controls for campaign fund raising. Later in 1988, legislative and legal setbacks on proposals designed to limiting overall campaign spending by candidates were shelved after a Republican filibuster. In addition, a constitutional amendment to override ‘’Buckley’’ failed to get off the ground.

In 1994, Senate Democrats had more bills blocked by Republicans including a bill setting spending limits and authorizing partial public financing of congressional elections. In 1996, bipartisan legislation for voluntary spending limits which rewarded those who comply, and which banned soft money, was killed by a Republican filibuster.^[43]

The Reform Party, founded by Ross Perot, made campaign finance reform a central issue in its platform, and when Perot ran for president in 1992 and 1996 he strongly argued for it. Oddly enough, most political scientists believe that campaign finance laws hindered Perot’s efforts to establish the Reform Party on a permanent basis.^{[citation needed]}

In 1997, the McCain-Feingold bipartisan bill sought to close soft money and TV advertising expenditures but the legislation was defeated by a Republican filibuster. Several different proposals were made in 1999 by both parties. The Campaign Integrity Act (H.R. 1867) proposed by Asa Hutchinson (R – Arkansas) put a ban on soft money and raised hard money limits. The Citizen Legislature & Political ACT (H.R. 1922) sponsored by Rep. John Doolittle (R – CA) would repeal all federal freedom ACT election contribution limits and expedite and expand disclosure. H.R. 417 Campaign Reform Act Shays-Meehan Bill, sponsored by Christopher Shays (R – CT) and Martin Meehan (D – MA), banned soft money and limited types of campaign advertising.^[43]

Campaign finance again became a major issue in the 2000 presidential election, especially with candidates John McCain and Ralph Nader. Organizations in favor of campaign finance reform included manypublic interest groups, such as Common Cause, Democracy 21, the Campaign Legal Center, and Democracy Matters. Opposition came from a coalition of organizations such as the American Civil Liberties Union and the Center for Competitive Politics (both of which argue that campaign finance reform would harm free speech) and the National Rifle Association, National Right to Life Committee, and other organizations.

Developments after Citizens United

The DISCLOSE Act (S. 3628) was proposed in July 2010. The bill would have amended the Federal Election Campaign Act of 1971 to prohibit foreign influence in Federal elections, prohibit government contractors from making expenditures with respect to such elections, and establish additional disclosure requirements with respect to spending in such elections. The bill would also impose new donor and contribution disclosure requirements on nearly all organizations that air political ads independently of candidates or the political parties. The legislation would require the sponsor of the ad to appear in it and take responsibility for it. Obama argued that the bill would also reduce foreign influence over American elections. Democrats needed at least one Republican to support the measure in order to get the 60 votes to overcome GOP procedural delays, but were unsuccessful.^[44][45]

Disclosure laws helped shed light on who was paying for elections. However, not all money was disclosed in the 2010 election cycle and this undisclosed money was termed “dark money“.^[46] In 2012 the Boston Globe repeated the same term “dark money” and described money flowing from tax-exempt non-profits in the form of interest advocacy groups as “social welfare”.^[47]

Public financing of campaigns

Public financing of presidential campaigns

At the federal level, public funding is limited to subsidies for presidential campaigns. This includes (1) a “matching” program for the first $250 of each individual contribution during the primary campaign, (2) financing the major parties’ national nominating conventions, and (3) funding the major party nominees’ general election campaigns.^[48]

To receive subsidies in the primary, candidates must qualify by privately raising $5000 each in at least 20 states. During the primaries, in exchange for agreeing to limit his or her spending according to a statutory formula, eligible candidates receive matching payments for the first $250 of each individual contribution (up to half of the spending limit). By refusing matching funds, candidates are free to spend as much money as they can raise privately.

From the inception of this program in 1976 through 1992, almost all candidates who could qualify accepted matching funds in the primary. In 1996 Republican Steve Forbes opted out of the program. In 2000, Forbes and George W. Bush opted out. In 2004 Bush and Democrats John Kerry and Howard Dean chose not to take matching funds in the primary.^{[citation needed]} In 2008, Democrats Hillary Clinton andBarack Obama, and Republicans John McCain, Rudy Giuliani, Mitt Romney and Ron Paul decided not to take primary matching funds. Republican Tom Tancredo^[49] and Democrats Chris Dodd,^[50] Joe Biden^[51] and John Edwards elected to take public financing.

In addition to primary matching funds, the public funding program also assists with financing the major parties’ (and eligible minor parties’) presidential nominating conventions and funding the major party (and eligible minor party) nominees’ general election campaigns. The grants for the major parties’ conventions and general election nominees are adjusted each Presidential election year to account for increases in the cost of living. In 2012, each major party is entitled to $18.2 million in public funds for their conventions, and the parties’ general election nominees are eligible to receive $91.2 million in public funds.^[52] If candidates accept public funds, they agree not to raise or spend private funds or to spend more than $50,000 of their personal resources.

No major party nominee turned down government funds for the general election from 1976, when the program was launched, until Barack Obama did so in 2008.^[53] Obama again declined government funds for the 2012 campaign, as did presumptive Republican nominee Mitt Romney, setting up the only election since the program’s launch in which neither major party nominee accepted federal funding.^[54]

Eligibility of minor parties for public funds is based on showing in previous elections. The only party other than the Republicans and Democrats to receive government funding in a general election was the Reform Party, which qualified for public funding in 1996 and 2000 on the basis of Ross Perot’s strong showing in the 1992 and 1996 elections.

The presidential public financing system is funded by a $3 tax check-off on individual tax returns (the check off does not increase the filer’s taxes, but merely directs $3 of the government’s general fund to the presidential fund). The number of taxpayers who use the check off has fallen steadily since the early 1980s, until by 2006 fewer than 8 percent of taxpayers were directing money to the fund, leaving the fund chronically short of cash.^[55]

Public financing at the state and local level

A small number of states and cities have started to use broader programs for public financing of campaigns. One method, which its supporters call Clean Money, Clean Elections, gives each candidate who chooses to participate a fixed amount of money. To qualify for this subsidy, the candidates must collect a specified number of signatures and small (usually $5) contributions. The candidates are not allowed to accept outside donations or to use their own personal money if they receive this public funding. Candidates who choose to raise money privately rather than accept the government subsidy are subject to significant administrative burdens and legal restrictions, with the result that most candidates accept the subsidy. This procedure has been in place in races for all statewide and legislative offices in Arizonaand Maine since 2000, where a majority of officials were elected without spending any private contributions on their campaigns. Connecticut passed a Clean Elections law in 2005, along with the cities ofPortland, Oregon and Albuquerque, New Mexico.

A 2003 study by the GAO found that “It is too soon to determine the extent to which the goals of Maine’s and Arizona’s public financing programs are being met.”^[56]

In recent years, the movement for “Clean Elections” appears to have stalled. Proposition 89, a California ballot proposition in November 2006, sponsored by the California Nurses Union, that would have provided for public financing of political campaigns and strict contribution limits on corporations, was defeated. In 2008, the non-partisan California Fair Elections Act passed the legislature and Governor Schwarzenegger signed it, but the law does not take effect unless approved by voters in a referendum in 2010.^{[dated info]} A proposal to implement Clean Elections in Alaska was voted down by a two-to-one margin in 2008.,^[57] and a pilot program in New Jersey was terminated in 2008 amid concern about its constitutionality and that the law was ineffective in accomplishing its goals. In 2006, in Randall v. Sorrell, the Supreme Court held that large parts of Vermont’s Clean Elections law were unconstitutional. In 2008, the Supreme Court’s decision in Davis v. Federal Election Commission suggested that a key part of most Clean Election laws—a provision granting extra money (or “rescue funds”) to participating candidates who are being outspent by non-participating candidates—is unconstitutional. On the basis of Davis v. Federal Election Commission, in late 2008 a federal court in Arizona found the “rescue funds” prosivions of Arizona’s Clean Elections law unconstitutional in McCommish v. Brewer.^[58] In a suit brought by the Green Party of Connecticut, a federal court ruled Connecticut’s law was unconstitutional in August 2009.^[59] An appeal is pending as of October 2009.

Citizens United v. Federal Election Commission
Supreme Court of the United States
Argued March 24, 2009 Reargued September 9, 2009 Decided January 21, 2010
Full case name	Citizens United, Appellant v. Federal Election Commission
Citations	558 U.S. 50 (more) 130 S.Ct. 876
Prior history	denied appellants motion for a preliminary injunction 530 F. Supp. 2d 274 (D.D.C. 2008)[1] probable jurisdiction noted 128 S. Ct. 1471 (2008).
Argument	Oral argument
Reargument	Reargument
Opinion Announcment	Opinion announcement
Holding
A provision of the Bipartisan Campaign Reform Act prohibiting unions, corporations and not-for-profit organizations from broadcasting electioneering communications within 60 days of a general election or 30 days of a primary election violates the free speech clause of the First Amendment to the United States Constitution. United States District Court for the District of Columbia reversed.
Court membership
Chief Justice John G. Roberts Associate Justices John P. Stevens · Antonin Scalia Anthony Kennedy · Clarence Thomas Ruth Bader Ginsburg · Stephen Breyer Samuel Alito · Sonia Sotomayor
Case opinions
Majority	Kennedy, joined by Roberts, Scalia, Alito; Thomas (all but Part IV); Stevens, Ginsburg, Breyer, Sotomayor (only as to Part IV)
Concurrence	Roberts, joined by Alito
Concurrence	Scalia, joined by Alito; Thomas (in part)
Concur/dissent	Stevens, joined by Ginsburg, Breyer, Sotomayor
Concur/dissent	Thomas

Citizens United v. Federal Election Commission, 558 U.S. 50 (2010), is a landmark decision by the United States Supreme Court, which held that the First Amendment prohibited the government from restricting independent political expenditures by corporations and unions. The nonprofit corporation Citizens United wanted to air a film critical of Hillary Clinton and to advertise the film during television broadcasts in apparent violation of the 2002 Bipartisan Campaign Reform Act (commonly known as the McCain–Feingold Act or “BCRA”).^[2] In a 5–4 decision, the Court held that portions of BCRA §203 violated the First Amendment.

The decision reached the Supreme Court on appeal from a July 2008 decision by the United States District Court for the District of Columbia. Section 203 of BCRA defined an “electioneering communication” as a broadcast, cable, or satellite communication that mentioned a candidate within 60 days of a general election or 30 days of a primary, and prohibited such expenditures by corporations and unions. The lower court held that §203 of BCRA applied and prohibited Citizens United from advertising the film Hillary: The Movie in broadcasts or paying to have it shown on television within 30 days of the 2008 Democratic primaries.^[1][3] The Supreme Court reversed, striking down those provisions of BCRA that prohibited corporations (including nonprofit corporations) and unions from spending on “electioneering communications”.^[2]

The decision overruled Austin v. Michigan Chamber of Commerce (1990) and partially overruled McConnell v. Federal Election Commission (2003).^[4] The Court, however, upheld requirements for public disclosure by sponsors of advertisements (BCRA §201 and §311). The case did not involve the federal ban on direct contributions from corporations or unions to candidate campaigns or political parties, which remain illegal in races for federal office.^[5]

Background

The Bipartisan Campaign Reform Act of 2002 (known as BCRA or McCain–Feingold Act)—specifically §203, which modified the Federal Election Campaign Act of 1971, 2 U.S.C. § 441b—prohibited corporations and unions from using their general treasury to fund “electioneering communications” (broadcast advertisements mentioning a candidate) within 30 days before a primary or 60 days before a general election. During the 2004 presidential campaign, a conservative nonprofit501(c)(4) organization named Citizens United filed a complaint before the Federal Election Commission (FEC) charging that advertisements for Michael Moore’s film Fahrenheit 9/11, a documentary critical of the Bush administration’s response to the terrorist attacks on September 11, 2001, constituted political advertising and thus could not be aired within the 30 days before a primary election or 60 days before a general election. The FEC dismissed the complaint after finding no evidence that broadcast advertisements for the movie and featuring a candidate with the proscribed time limits had actually been made.^[6]The FEC later dismissed a second complaint which argued that the movie itself constituted illegal corporate spending advocating the election or defeat of a candidate, which was illegal under the Taft-Hartley Act of 1947 and the Federal Election Campaign Act Amendments of 1974. In dismissing that complaint, the FEC found that:

The complainant alleged that the release and distribution of FAHRENHEIT 9/11 constituted an independent expenditure because the film expressly advocated the defeat of President Bush and that by being fully or partially responsible for the film’s release, Michael Moore and other entities associated with the film made excessive and/or prohibited contributions to unidentified candidates. The Commission found no reason to believe the respondents violated the Act because the film, associated trailers and website represented bona fide commercial activity, not “contributions” or “expenditures” as defined by the Federal Election Campaign Act.^[7]

In the wake of these decisions, Citizens United sought to establish itself as a bona fide commercial film maker, producing several documentary films between 2005 and 2007. By early 2008, it sought to run television commercials to promote its latest political documentary Hillary: The Movie and to air the movie on DirecTV.^[8] The movie was highly critical of then-Senator Hillary Clinton, with the District Court describing the movie as an elongated version of a negative 30-second television spot. In January 2008, the United States District Court for the District of Columbia ruled that the television advertisements forHillary: The Movie violated the BCRA restrictions of “electioneering communications” within 30 days of a primary. Though the political action committee claimed that the film was fact-based and nonpartisan, the lower court found that the film had no purpose other than to discredit Clinton’s candidacy for president.^[9] The Supreme Court docketed the case on August 18, 2008^[10] and heard oral argument on March 24, 2009.^[8][11][12]

Before the Court

During the original oral argument, then-Deputy Solicitor General Malcolm L. Stewart (representing the FEC) argued that under Austin v. Michigan Chamber of Commerce,^[13] the government would have the power to ban books if those books contained even one sentence expressly advocating the election or defeat of a candidate and were published or distributed by a corporation or union.^[14] In response to this line of questioning, Stewart further argued that under Austin the government could ban the digital distribution of political books over the Amazon Kindle or prevent a union from hiring a writer to author a political book.^[15]

According to a 2012 article in The New Yorker by Jeffrey Toobin, the Court expected after oral argument to rule on the narrow issue that had originally been presented. At the subsequent conference among the justices after oral argument, the vote was 5–4 in favor of Citizens United being allowed to show the film. The justices voted the same as they had in Federal Election Commission v. Wisconsin Right to Life, Inc., a similar 2007 case, where Anthony Kennedy had cast the deciding vote.^[16]

Chief Justice John Roberts, per the privilege of that office when in the majority, was in charge of assigning the majority opinion, and chose to do it himself. His opinion restricted itself narrowly, holding that the BCRA allowed the showing of the film. A draft concurrence by Kennedy argued that the court could and should have gone much further. The other justices in the majority began agreeing with Kennedy, and convinced Roberts to reassign the writing and allow Kennedy’s concurrence to instead become the majority opinion.^[16]

On the other side, John Paul Stevens, the most senior justice in the minority, assigned the dissent to David Souter, who announced his retirement from the Court while he was working on it. The final draft went beyond critiquing the majority. Toobin described it as “air[ing] some of the Court’s dirty laundry,” accusing Roberts of having manipulated Court procedures to reach his desired result—an expansive decision that changed decades of election law but ruled on issues neither party to the litigation had presented.^[16]

Roberts was concerned that Souter’s dissent, likely to be his last opinion for the Court, could “damage the Court’s credibility.” He agreed with the minority to withdraw the opinion and schedule the case for reargument. However, when he did, the “Questions Presented” to the parties were more expansive, touching on the issues Kennedy had identified. According to Toobin, the eventual result was therefore a foregone conclusion from that point on, since the same majority had supported it.^[16]Toobin’s account has been criticized for drawing conclusions unsupported by the evidence in his article. ^[17]

On June 29, 2009, the last day of the term, the Court issued an order directing the parties to re-argue the case on September 9 after briefing whether it might be necessary to overrule Austin, and/orMcConnell v. Federal Election Commission,^[18] to decide the case.^[19] Justice Stevens noted in his dissent that in its prior motion for summary judgment Citizens United had abandoned its facial challenge of BCRA §203, with the parties agreeing to the dismissal of the claim.^[20]

Justice Sotomayor sat on the bench for the first time during the second round of oral arguments. This was the first case argued by then-Solicitor General and future Supreme Court Justice Elena Kagan. Former Bush Solicitor General Ted Olson and First Amendment lawyer Floyd Abrams argued for Citizens United, and former Clinton Solicitor General Seth Waxman defended the statute on behalf of various supporters.^[21] Legal scholar Erwin Chemerinsky called it “one of the most important First Amendment cases in years”.^[22]

Opinions of the Court

Justice Kennedy’s majority opinion^[23] found that the BCRA §203 prohibition of all independent expenditures by corporations and unions violated the First Amendment’s protection of free speech. The majority wrote, “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.”

Justice Kennedy’s opinion for the majority also noted that since the First Amendment (and the Court) do not distinguish between media and other corporations, these restrictions would allow Congress to suppress political speech in newspapers, books, television and blogs.^[2] The Court overruled Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), which had held that a state law that prohibited corporations from using treasury money to support or oppose candidates in elections did not violate the First and Fourteenth Amendments. The Court also overruled that portion of McConnell v. Federal Election Commission, 540 U.S. 93 (2003), that upheld BCRA’s restriction of corporate spending on “electioneering communications”. The Court’s ruling effectively freed corporations and unions to spend money both on “electioneering communications” and to directly advocate for the election or defeat of candidates (although not to contribute directly to candidates or political parties).

The majority argued that the First Amendment must protect speakers with equal vigor and that the First Amendment does not tolerate prohibitions of speech based on the identity of the speaker. Because corporations are groups of individuals, the corporate form must receive the same free speech privileges as individual citizens. Likewise, the majority argued that independent expenditures are a form of speech, and limiting a corporation’s ability to spend money also limits its ability to speak.

The majority overruled Austin because that decision allowed different restrictions on speech-related spending based on corporate identity. Additionally, the majority argued thatAustin was based on an “equality” rationale – trying to equalize speech between different speakers – that the Court had previously rejected as illegitimate under the First Amendment in Buckley v. Valeo.^[23]The Michigan statute at issue in “Austin” had distinguished between corporate and union spending, prohibiting the former while allowing the latter. The “Austin” Court, over vigorous dissent by Justices Scalia, Kennedy, and Sandra Day O’Connor, had held that such distinctions were within the legislature’s prerogative. In Citizens United, however, the majority argued that the First Amendment purposefully keeps the government from interfering in the “marketplace of ideas” and “rationing” speech, and it is not up to the legislatures or the courts to create a sense of “fairness” by restricting speech.^[23]

The majority also criticized Austin’s reasoning that the “distorting effect” of large corporate expenditures constituted a risk of corruption or the appearance of corruption. Rather, the majority argued that the government had no place in determining whether large expenditures distorted an audience’s perceptions, and that the type of “corruption” that might justify government controls on spending for speech had to relate to some form of “quid pro quo” transaction. According to the majority, “there is no such thing as too much speech.”^[23] The public has a right to have access to all information and to determine the reliability and importance of the information. Additionally, the majority did not believe that reliable evidence substantiated the risk of corruption or the appearance of corruption, and so this rationale did not satisfy strict scrutiny.

The majority opinion relied heavily on the reasoning and principles of the landmark campaign finance case of Buckley v. Valeo, 424 U.S. 1 (1976), and First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978), in which the Court struck down a broad prohibition against independent expenditures by corporations in ballot initiatives and referenda.^[23] Specifically, the majority echoed Bellotti’s rejection of categories based on a corporation’s purpose. The majority argued that to grant First Amendment protections to media corporations but not others presented a host of problems, and so all corporations should be equally protected from expenditure restrictions.

The Court found that BCRA §§201 and 311, provisions requiring disclosure of the funder, were valid as applied to the movie advertisements and to the movie itself.^[23]

Concurrences

Chief Justice Roberts, with whom Justice Alito joined, wrote separately “to address the important principles of judicial restraint and stare decisis implicated in this case”.^[24]

Roberts wrote to further explain and defend the main opinion’s statement that “there is a difference between judicial restraint and judicial abdication.” Roberts explained why the Court must sometimes overrule prior decisions. Had prior Courts never gone against stare decisis, for example, “segregation would be legal, minimum wage laws would be unconstitutional, and the Government could wiretap ordinary criminal suspects without first obtaining warrants”. Roberts’ concurrence recited a plethora of case law in which the court had ruled against precedent. Ultimately, Roberts argued that “stare decisis…counsels deference to past mistakes, but provides no justification for making new ones”.^[24]

Justice Scalia joined the opinion of the Court, but also wrote a concurring opinion which was joined by Justice Alito in full and by Justice Thomas in part. Scalia addressed Justice Stevens‘ dissent, specifically with regard to the original understanding of the First Amendment. Scalia stated that Stevens’ dissent was “in splendid isolation from the text of the First Amendment…It never shows why ‘the freedom of speech’ that was the right of Englishmen did not include the freedom to speak in association with other individuals, including association in the corporate form.” He further considered the dissent’s exploration of the Framers’ views about the “role of corporations in society” to be misleading, and even if valid, irrelevant to the text. Scalia principally argued that the First Amendment was written in “terms of speech, not speakers” and that “Its text offers no foothold for excluding any category of speaker.”^[25] Scalia argued that the Free Press clause was originally intended to protect the distribution of written materials and did not apply to the media per se. This understanding supported the majority’s contention that the Constitution does not allow the Court to separate corporations into media and non-media categories.^[23]

Justice Thomas wrote a separate opinion concurring in all but the upholding of the disclosure provisions. In order to protect the anonymity of contributors to organizations exercising free speech, Thomas would have struck down the reporting requirements of BCRA §201 and §311 as well, rather than allowing them to be challenged only on a case-specific basis. Thomas’s primary argument was that anonymous free speech is protected and that making contributor lists public makes the contributors vulnerable to retaliation, citing instances of retaliation against contributors to both sides of a then recent California voter initiative. Thomas also expressed concern that such retaliation could extend to retaliation by elected officials. Thomas did not consider “as-applied challenges” to be sufficient to protect against the threat of retaliation.^[26]

Dissent

A dissenting opinion by Justice Stevens^[27] was joined by Justice Ginsburg, Justice Breyer, and Justice Sotomayor. To emphasize his unhappiness with the majority, Stevens took the relatively rare step of reading part of his 90 page dissent from the bench.^[28] Stevens concurred in the Court’s decision to sustain BCRA’s disclosure provisions, but dissented from the principal holding of the majority opinion. The dissent argued that the Court’s ruling “threatens to undermine the integrity of elected institutions across the Nation. The path it has taken to reach its outcome will, I fear, do damage to this institution.” He wrote: “A democracy cannot function effectively when its constituent members believe laws are being bought and sold.”

Justice Stevens also argued that the Court addressed a question not raised by the litigants when it found BCRA §203 to be facially unconstitutional and that the majority “changed the case to give themselves an opportunity to change the law”.^[23] He argued that the majority had expanded the scope beyond the questions presented by the appellant and that therefore a sufficient record for judging the case did not exist. Stevens argued that at a minimum the Court should have remanded the case for a fact-finding hearing, and that the majority did not consider other compilations of data, such as the Congressional record for justifying BCRA §203.

Stevens referenced a number of major First Amendment cases to argue that the Court had long recognized that to deny Congress the power to safeguard against “the improper use of money to influence the result [of an election] is to deny to the nation in a vital particular the power of self protection”. Burroughs v. United States, 290 U.S. 534 (1934). After recognizing that in Buckley the Court had struck down portions of a broad prohibition of independent expenditures from any sources, Stevens argued that nevertheless “Buckley” recognized the legitimacy of “prophylactic” measures for limiting campaign spending and found the prevention of “corruption” to be a reasonable goal for legislation. Consequently, Stevens argued that “Buckley” left the door open for carefully tailored future regulation.^[23] Although the majority echoed many of the Bellotti arguments, Stevens argued that the majority opinion contradicted the reasoning of other campaign finance cases – in particular, “Austin” and “McConnell” – and found it telling that the majority, when citing such cases, referenced many of the dissents.

Stevens’ lengthy dissent specifically sought to address a number of the majority’s central arguments:

First, Stevens argued that the majority failed to recognize the possibility for corruption outside of strict quid pro quo exchanges. According to Stevens, the Court should view the selling of a vote and the selling of access to a politician in exchange for a beneficial expenditure as two points on the same spectrum (instead, the majority separates them into discrete categories). Stevens referenced facts from a previous BCRA challenge to argue that contributors gain favorable political access,^[23] a point not contested by the majority but considered by the majority to be insufficient justification for limiting speech rights.

Stevens argued that in the past, even when striking down a ban on corporate independent expenditures, the Court “never suggested that such quid pro quo debts must take the form of outright vote buying or bribes” (Bellotti). Buckley, he claimed, also acknowledged that large independent expenditures present the same dangers as quid pro quo arrangements. Using the record from a previous BCRA §203 challenge, he argued that independent expenditures were sometimes a factor in gaining political access and concluded that large independent expenditures generate more influence than direct campaign contributions.^[23] Furthermore, Stevens argued that corporations could threaten Representatives and Senators with negative advertising to gain unprecedented leverage. Stevens supported his argument by citing Caperton v. A.T. Massey Coal Co., 556 U.S. _ (2009), where the Court held that $3 million in independent expenditures in a judicial race raised sufficient questions about a judge’s impartiality to require the judge to recuse himself in a future case involving the spender. Stevens argued that it was contradictory for the majority to ignore the same risks in legislative and executive elections, and he pointed out that the majority opinion would only exacerbate the problem presented in Caperton because of the number of states with judicial elections and increased spending in judicial races.

Second, Stevens argued that the majority did not place enough emphasis on the need to prevent the “appearance of corruption” in elections. Earlier cases, dating back to Buckley and Bellotti, recognized the importance of public confidence in democracy. Stevens cited recent data indicating that 80% of the public view corporate independent expenditures as a method used to gain unfair legislative access.^[23]Stevens predicted that if the public believes that corporations dominate elections, disaffected voters will stop participating.

Third, Stevens argued that the majority’s decision failed to recognize the dangers of the corporate form. Austin held that the prevention of corruption, including the distorting influence of a dominant funding source, was a sufficient reason for regulating corporate independent expenditures. In defending Austin, Stevens discussed how the unique qualities of corporations and other artificial legal entities made them dangerous to democratic elections. These legal entities, he argued, have perpetual life, the ability to amass large sums of money, limited liability, no ability to vote, no morality, no purpose outside of profit-making, and no loyalty. Therefore, he argued, the courts should permit legislatures to regulate corporate participation in the political process.

Legal entities, Stevens wrote, are not “We the People” for whom our Constitution was established.^[23] Therefore, he argued, they should not be given speech protections under the First Amendment. The First Amendment, he argued, protects individual self-expression, self-realization and the communication of ideas. Corporate spending is the “furthest from the core of political expression” protected by the Constitution, he argued, citing Federal Election Commission v. Beaumont, 539 U.S. 146 (2003), and corporate spending on politics should be viewed as a business transaction designed by the officers or theboards of directors for no purpose other than profit-making. Stevens called corporate spending “more transactional than ideological”. Stevens also pointed out that any member of a corporation may spend personal money on promoting a campaign because BCRA only prohibited the use of general treasury money.

Fourth, Stevens attacked the majority’s central argument: that the prohibition of spending limits guards free speech and allows the general public to receive all available information. Stevens argued, relying onAustin, that corporations “unfairly influence” the electoral process with vast sums of money that few individuals can match, which distorts the public debate. Because an average person in the real world can only receive so much information during a relevant election period, Stevens described “unfair corporate influence” as the ability to outspend everyone else, to push others out of prime broadcasting spots and to dominate the “marketplace of ideas”.^[23] This process, he argued, puts disproportionate focus on this speech and gives the impression of widespread support regardless of actual support (outside of the corporate spender). Thus, this process marginalizes the speech of real people.

Stevens referred to the majority’s argument that “there is no such thing as too much speech” as “facile” and a “straw man” argument. He called it an incorrect statement of First Amendment law because the Court recognizes numerous exceptions to free speech, such as fighting words, obscenity restrictions, time, place and manner restrictions, etc. Throughout the dissent, Stevens argued that the majority’s “slogan” ignored the possibility that too much speech from one source could “drown out” other points of view.

Fifth, Stevens criticized the majority’s fear that the government could use BCRA §203 to censor the media. The focus placed on this hypothetical fear made no sense to Stevens because it did not relate to the facts of this case—if the government actually attempted to apply BCRA §203 to the media, the Court could deal with the problem at that time. Stevens described the majority’s supposed protection of the media as nothing more than posturing. According to Stevens, it was the majority’s new rule, announced in this case, that prohibited a law from distinguishing between “speakers” or funding sources. This new rule would be the only reason why media corporations could not be exempted from BCRA §203. Consequently, legislatures are “damned if they do and damned if they don’t”.^[23] If lawmakers exempt media corporations from a regulation, they violate the new rule against classifying speakers based on “corporate identity”, but if lawmakers equally regulate all corporations they violate the Free Press clause of the First Amendment. In this respect, Stevens and the majority conceptualize the First Amendment’s protection of “the press” quite differently. Stevens argues that the “Press” is an entity, which can be distinguished from other persons and entities which are not “press”. The majority opinion viewed “freedom of the press” as an activity, applicable to all citizens seeking to publish views.

Sixth, Stevens claimed that the majority failed to give proper deference to the legislature. Stevens predicted that this ruling would restrict the ability of the states to experiment with different methods for decreasing corruption in elections. According to Stevens, this ruling virtually ended those efforts, “declaring by fiat” that people will not “lose faith in our democracy”.^[23] Because of the complex interrelated interests at stake, Stevens found this an undesirable area of law for black-and-white rules. Stevens argued that the majority’s view of a self-serving legislature, passing campaign-spending laws to gain an advantage in retaining a seat, coupled with “strict scrutiny” of laws, would make it difficult for any campaign finance regulation to be upheld in future cases.

Seventh, Stevens argued that the majority opinion ignored the rights of shareholders. A series of cases protects individuals from legally compelled payment of union dues to support political speech. Abood v. Detroit Board of Education, 431 U.S. 209 (1977). Because shareholders invest money in corporations, Stevens argued that the law should likewise help to protect shareholders from funding speech that they oppose. The majority, however, argued that ownership of corporate stock was voluntary, and that unhappy shareholders could simply sell off their shares if they did not agree with the corporation’s speech. Stevens also argued that Political Action Committees (PACs), which allow individual members of a corporation to invest money in a separate fund, are an adequate substitute for general corporate speech and better protect shareholder rights. The majority, by contrast, had argued that most corporations are too small and lack the resources and raw number of shareholders and management staff necessary to maintain a PAC. Not surprisingly, Stevens focused his argument on large, publicly held corporations, while the justices in the majority, and particularly Justice Scalia’s concurring opinion, placed an emphasis on small, closely held corporations.

Stevens called the majority’s faith in “corporate democracy” an unrealistic method for a shareholder to oppose political funding. A derivative suit is slow, inefficient, risky and potentially expensive. Likewise, shareholder meetings only happen a few times a year, not prior to every decision or transaction. Rather, the officers and boards control the day-to-day spending, including political spending. According to Stevens, the shareholders have few options, giving them “virtually nonexistent” recourse for opposing a corporation’s political spending.^[23] Furthermore, most shareholders use investment intermediaries, such as mutual funds or pensions, and by the time a shareholder may find out about a corporation’s political spending and try to object, the damage is done and the shareholder has funded disfavored speech.

Stevens concluded his dissent:

At bottom, the Court’s opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.

In conclusion, Stevens and the other dissenting justices would have upheld the constitutionality of BCRA §203 and its restriction against advertising and broadcasting “Hillary: The Movie” within 30 days of the primary election because the movie was produced and distributed by a corporate entity.

Subsequent developments

There was a wide range of reactions to the case from politicians, academics, attorneys, advocacy groups and journalists.

Support

Politicians

Senate Republican leader Mitch McConnell, who attended the announcement of the ruling, said the court “struck a blow for the First Amendment”.^[29]

Republican campaign consultant Ed Rollins opined that the decision adds transparency to the election process and will make it more competitive.^[30]

Advocacy groups

Citizens United, the group filing the lawsuit said, “Today’s U.S. Supreme Court decision allowing Citizens United to air its documentary films and advertisements is a tremendous victory, not only for Citizens United but for every American who desires to participate in the political process.”^[31] During litigation, Citizens United had support from the United States Chamber of Commerce and the National Rifle Association.^[29]

Campaign finance attorney Cleta Mitchell, who had filed an amicus curiae brief on behalf of two advocacy organizations opposing the ban, wrote that “The Supreme Court has correctly eliminated a constitutionally flawed system that allowed media corporations (e.g., The Washington Post Co.) to freely disseminate their opinions about candidates using corporate treasury funds, while denying that constitutional privilege to Susie’s Flower Shop Inc. … The real victims of the corporate expenditure ban have been nonprofit advocacy organizations across the political spectrum.”^[32]

Heritage Foundation fellow Hans A. von Spakovsky, a former Republican member of the Federal Election Commission, said “The Supreme Court has restored a part of the First Amendment that had been unfortunately stolen by Congress and a previously wrongly-decided ruling of the court.”^[33]

Libertarian Cato Institute analysts John Samples and Ilya Shapiro wrote that restrictions on advertising were based on the idea “that corporations had so much money that their spending would create vast inequalities in speech that would undermine democracy”. However, “to make campaign spending equal or nearly so, the government would have to force some people or groups to spend less than they wished. And equality of speech is inherently contrary to protecting speech from government restraint, which is ultimately the heart of American conceptions of free speech.”^[34]

The American Civil Liberties Union filed an amicus brief that supported the decision,^[35] saying that “section 203 should now be struck down as facially unconstitutional”, though membership was split over the implications of the ruling and its board sent the issue to its special committee on campaign finance for further consideration.^[36]

Academics and attorneys

Bradley A. Smith, professor of law at Capital University Law School, former chairman of the FEC, founder of the Center for Competitive Politics and a leading proponent of deregulation of campaign finance, wrote that the major opponents of political free speech are “incumbent politicians” who “are keen to maintain a chokehold on such speech”. Empowering “small and midsize corporations—and every incorporated mom-and-pop falafel joint, local firefighters’ union, and environmental group—to make its voice heard” frightens them.^[37] In response to statements by President Obama and others that the ruling would allow foreign entities to gain political influence through U.S. subsidiaries, Smith pointed out that the decision did not overturn the ban on political donations by foreign corporations and the prohibition on any involvement by foreign nationals in decisions regarding political spending by U.S. subsidiaries, which are covered by other parts of the law.^[38]

Campaign finance expert Jan Baran, a member of the Commission on Federal Ethics Law Reform, agreed with the decision, writing that “The history of campaign finance reform is the history of incumbent politicians seeking to muzzle speakers, any speakers, particularly those who might publicly criticize them and their legislation. It is a lot easier to legislate against unions, gun owners, ‘fat cat’ bankers, health insurance companies and any other industry or ‘special interest’ group when they can’t talk back.” Baran further noted that in general conservatives and libertarians praised the ruling’s preservation of the First Amendment and freedom of speech, but that liberals and campaign finance reformers criticized it as greatly expanding the role of corporate money in politics.^[39]

Attorney Kenneth Gross, former associate general counsel of the FEC, wrote that corporations relied more on the development of long-term relationships, political action committees and personal contributions, which were not affected by the decision. He held that while trade associations might seek to raise funds and support candidates, corporations which have “signed on to transparency agreements regarding political spending” may not be eager to give.^[32]

The New York Times asked seven academics to opine on how corporate money would reshape politics as a result of the court’s decision.^[40] Three of these wrote that the effects would be minimal or positive: Christopher Cotton, a University of Miami School of Business assistant professor of economics, wrote that “There may be very little difference between seeing eight ads or seeing nine ads (compared to seeing one ad or two). And, voters recognize that richer candidates are not necessarily the better candidates, and in some cases, the benefit of running more ads is offset by the negative signal that spending a lot of money creates.^[40] University of California professor of law Eugene Volokh held that the “most influential actors in most political campaigns” are media corporations which “overtly editorialize for and against candidates, and also influence elections by choosing what to cover and how to cover it”. Holding that corporations like Exxon would fear alienating voters by supporting candidates, the decision really meant that voters would hear “more messages from more sources”.^[40] Joel Gora, a professor at Brooklyn Law School who had previously argued the case of Buckley v. Valeo on behalf of the American Civil Liberties Union, said that the decision represented “a great day for the First Amendment” writing that the Court had “dismantled the First Amendment ‘caste system’ in election speech”.^[40]

Journalists

The Editorial Board of the San Antonio Express-News criticized McCain–Feingold’s exception for media corporations from the ban on corporate electioneering, writing that it “makes no sense” that the paper could make endorsements up until the day of the election but advocacy groups could not. “While the influence of money on the political process is troubling and sometimes corrupting, abridging political speech is the wrong way to counterbalance that influence.”^[41]

Anthony Dick in National Review countered a number of arguments against the decision, asking rhetorically, “is there something uniquely harmful and/or unworthy of protection about political messages that come from corporations and unions, as opposed to, say, rich individuals, persuasive writers, or charismatic demagogues?” He noted that “a recent Gallup poll shows that a majority of the public actually agrees with the Court that corporations and unions should be treated just like individuals in terms of their political-expenditure rights”.^[42] A Gallup poll taken in October 2009 and released soon after the decision showed 57 percent of those surveyed agreed that contributions to political candidates are a form of free speech and 55 percent agreed that the same rules should apply to individuals, corporations and unions. Sixty-four percent of Democrats and Republicans believed campaign donations are a form of free speech.^[43]

Chicago Tribune editorial board member Steve Chapman wrote “If corporate advocacy may be forbidden as it was under the law in question, it’s not just Exxon Mobil and Citigroup that are rendered mute. Nonprofit corporations set up merely to advance goals shared by citizens, such as the American Civil Liberties Union and the National Rifle Association, also have to put a sock in it. So much for the First Amendment goal of fostering debate about public policy.”^[44]

Criticisms

American politicians

President Barack Obama stated that the decision “gives the special interests and their lobbyists even more power in Washington — while undermining the influence of average Americans who make small contributions to support their preferred candidates”.^[45] Obama later elaborated in his weekly radio address saying, “this ruling strikes at our democracy itself” and “I can’t think of anything more devastating to the public interest”.^[46] On January 27, 2010, Obama further condemned the decision during the 2010 State of the Union Address, stating that, “Last week, the Supreme Court reversed a century of law^[47] to open the floodgates for special interests — including foreign corporations — to spend without limit in our elections. Well I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities.”

Democratic senator Russ Feingold, a lead sponsor of the 2002 Bipartisan Campaign Reform Act, stated “This decision was a terrible mistake. Presented with a relatively narrow legal issue, the Supreme Court chose to roll back laws that have limited the role of corporate money in federal elections since Teddy Roosevelt was president.”^[48] Representative Alan Grayson, a Democrat, stated that it was “the worst Supreme Court decision since the Dred Scott case, and that the court had opened the door to political bribery and corruption in elections to come.^[49] Democratic congresswoman Donna Edwards, along with constitutional law professor and Maryland Democratic State Senator Jamie Raskin, have advocated petitions to reverse the decision by means of constitutional amendment.^[50] Rep. Leonard Boswellintroduced legislation to amend the constitution.^[51] Senator John Kerry also called for an Amendment to overrule the decision.^[52] On December 8, 2011, Senator Bernie Sanders proposed the Saving American Democracy Amendment, which would reverse the court’s ruling.^[53][54]

Republican Senator John McCain, co-crafter of the 2002 Bipartisan Campaign Reform Act and the party’s 2008 presidential nominee, said “there’s going to be, over time, a backlash … when you see the amounts of union and corporate money that’s going to go into political campaigns”.^[55] McCain was “disappointed by the decision of the Supreme Court and the lifting of the limits on corporate and union contributions” but not surprised by the decision, saying that “It was clear that Justice Roberts, Alito and Scalia, by their very skeptical and even sarcastic comments, were very much opposed to BCRA.”^[48]Republican Senator Olympia Snowe opined that “Today’s decision was a serious disservice to our country.”^[56]

Although federal law after Citizens United still prohibited corporate contributions to all political parties, Sanda Everette, co-chair of the Green Party, stated that “The ruling especially hurts the ability of parties that don’t accept corporate contributions, like the Green Party, to compete.” Another Green Party officer, Rich Whitney, stated “In a transparently political decision, a majority of the US Supreme Court overturned its own recent precedent and paid tribute to the giant corporate interests that already wield tremendous power over our political process and political speech.”

Ralph Nader, a lawyer who placed third in the popular vote in the last three presidential elections, condemned the ruling,^[57] saying that “With this decision, corporations can now directly pour vast amounts of corporate money, through independent expenditures, into the electoral swamp already flooded with corporate campaign PAC contribution dollars.” He called for shareholder resolutions asking company directors to pledge not to use company money to favor or oppose electoral candidates.^[58] Pat Choate, Reform Party candidate stated, “The court has, in effect, legalized foreign governments and foreign corporations to participate in our electoral politics.”^[59]

International

Ambassador Janez Lenar?i?, speaking for the Organization for Security and Co-operation in Europe‘s election body, which has overseen over 150 elections, stated that the ruling may adversely affect the organization’s two commitments of “giving voters a genuine choice and giving candidates a fair chance” in that “it threatens to further marginalize candidates without strong financial backing or extensive personal resources, thereby in effect narrowing the political arena”.^[60]

Academics and attorneys

The constitutional law scholar Laurence H. Tribe wrote that the decision “marks a major upheaval in First Amendment law and signals the end of whatever legitimate claim could otherwise have been made by the Roberts Court to an incremental and minimalist approach to constitutional adjudication, to a modest view of the judicial role vis-à-vis the political branches, or to a genuine concern with adherence to precedent” and pointed out that “Talking about a business corporation as merely another way that individuals might choose to organize their association with one another to pursue their common expressive aims is worse than unrealistic; it obscures the very real injustice and distortion entailed in the phenomenon of some people using other people’s money to support candidates they have made no decision to support, or to oppose candidates they have made no decision to oppose.”^[62]

Former supreme court Justice Sandra Day O’Connor, whose opinions had changed from dissenting in Austin to co-authoring (with Stevens) the majority opinion in McConnell twelve years later, criticized the decision only obliquely, but warned that “In invalidating some of the existing checks on campaign spending, the majority in Citizens United has signaled that the problem of campaign contributions in judicial elections might get considerably worse and quite soon.”^[63]

Richard L. Hasen, professor of election law at Loyola Law School, argued that the ruling “is activist, it increases the dangers of corruption in our political system and it ignores the strong tradition of American political equality”. He also described Justice Kennedy’s “specter of blog censorship” as sounding more like “the rantings of a right-wing talk show host than the rational view of a justice with a sense of political realism”.^[64]

Kathleen M. Sullivan, professor at Stanford Law School and Steven J. Andre, adjunct professor at Lincoln Law School, argued that two different visions of freedom of speech exist and clashed in the case. An egalitarian vision skeptical of the power of large agglomerations of wealth to skew the political process conflicted with a libertarian vision skeptical of government being placed in the role of determining what speech people should or should not hear.^[65][66]

Three other scholars writing in the aforementioned New York Times article were critical.^[40] Heather K. Gerken, Professor of Law at Yale Law School wrote that “The court has done real damage to the cause of reform, but that damage mostly came earlier, with decisions that made less of a splash.” Michael Waldman, director of the Brennan Center for Justice at N.Y.U. School of Law, opined that the decision “matches or exceeds Bush v. Gore in ideological or partisan overreaching by the court” and Fred Wertheimer, founder and president of Democracy 21 considered it “a disaster for the American people”.^[40]

Advocacy groups

Move to Amend, a national coalition of hundreds of organizations and over 113,000 individuals was formed in response to the ruling.^[67] It is seeking legislation or amendment that would restrict corporations and corporate interest groups from excessive influence in elections and lawmaking. A primary objective is to abolish corporate personhood and to hold corporations accountable to the public. The organization has local chapters in many states and sponsors public awareness activities.^[68][69]

Journalists

The New York Times stated in an editorial, “The Supreme Court has handed lobbyists a new weapon. A lobbyist can now tell any elected official: if you vote wrong, my company, labor union or interest group will spend unlimited sums explicitly advertising against your re-election.”^[70] Jonathan Alter called it the “most serious threat to American democracy in a generation”.^[71] The Christian Science Monitor wrote that the Court had declared “outright that corporate expenditures cannot corrupt elected officials, that influence over lawmakers is not corruption, and that appearance of influence will not undermine public faith in our democracy”.^[72]

Some journalists and politicians reacted strongly to the decision. An online media journal Veterans Today called for the “immediate arrest” of the justices voting in the majority for treason.^[73]

Citizens United and super PACs

Citizens United has often been credited (or blamed) for the creation of “super PACs“, political action committees which make no contributions to candidates or parties and so can accept unlimited contributions from individuals, corporations, and unions. Certainly the holding of “Citizens United” that, for purposes of establishing a “compelling government interest” of corruption sufficient to justify government limitations on political speech, “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption”, helped affirm the legal basis for super PACs^[74] However, it took another decision by the U.S. Court of Appeals for the District of Columbia Circuit, Speechnow.org v. Federal Election Commission (see campaign finance evolution in 2010#speechnow.org v fec), to actually authorize the creation of super PACs. While Citizens United held that corporations and unions could make independent expenditures, a separate provision of the Federal Election Campaign Act, at least as long interpreted by the Federal Election Commission, held that individuals could not contribute to a common fund without it becoming a PAC. PACs, in turn, were not allowed to accept corporate or union contributions of any size or to accept individual contributions in excess of $5000. In Speechnow.org, the D.C. Circuit, sitting en banc, held 9–0 that in light of Citizens United, such restrictions on the sources and size of contributions could not apply to an organization that made only independent expenditures in support of or opposition to a candidate, but not contributions to a candidates campaign.^[75] The effectiveness of this system remains a hot topic in American politics. See Political Action Committee.

In addition to indirectly providing support for the creation of super PACs, “Citizens United” allowed incorporated 501(c)(4) public advocacy groups (such as the National Rifle Association or Sierra Club, or the group Citizens United itself) and trade associations to make expenditures in political races. Such groups may not, under the tax code, have a primary purpose of engaging in electoral advocacy. These organizations must disclose their expenditures, but unlike super PACs they do not have to include the names of their donors in their FEC filings. A number of partisan organizations, such as Karl Rove‘s influential conservative Crossroads Grassroots Policy Strategies or the liberal 21st Century Colorado, have since registered as tax-exempt 501c4 groups (defined as groups promoting “social welfare”) and engaged in substantial political spending.^[76][77] This has led to claims of large secret donations, and questions about whether such groups should be required to disclose their donors. Historically, such non-profits have not been required to disclose their donors or names of members. See National Association for the Advancement of Colored People v. Alabama.

Media coverage

Political blogs

Election law blogsMost blogs avoided the theoretical aspects of the decision and focused on more personal and dramatic elements, including the Barack Obama-Samuel Alito face-off during the President’s State of the Union address.^[78] There, President Obama argued that the decision “reversed a century of law” (strictly, the federal ban on corporate and union expenditures dates from 1947) and that it would allow “foreign corporations to spend without limits in our elections”, during which Justice Alito, in the audience, perceivably mouthed the words “not true”. This event received extensive comment from political bloggers, with a substantial amount of the coverage concentrated on whether or not foreign corporations would be able to make substantial political contributions in US elections. “In 1910, Congress enacted the Federal Corrupt Practices Act. See 36 Stat. 822. The disclosure requirements of the Federal Corrupt Practices Act were upheld by the Supreme Court in Burroughs v. United States, 54 U.S. 287 (1934), as a Constitutional exercise of Congressional power to prevent corruption in elections: ‘The power of Congress to protect the election … from corruption being clear, the choice of means to that end presents a question primarily addressed to the judgment of Congress…. Congress reached the conclusion that public disclosure of political contributions, together with the names of contributors and other details, would tend to prevent corrupt use of money to affect elections. The verity of this conclusion reasonably cannot be denied.’”^[79]

Opinion pollsOn specialized blogs, the Citizens United v. FEC ruling increased traffic by about tenfold for a few days. Traffic also change in quality terms; a disproportionately large and diverse set of websites linked to their posts about the ruling, when compared to other topics addressed by these specialized blogs.

An ABC–Washington Post poll conducted February 4–8, 2010, showed that 80% of those surveyed opposed (and 65% strongly opposed) the Citizens United ruling which the poll described as saying “corporations and unions can spend as much money as they want to help political candidates win elections”. Additionally, 72% supported “an effort by Congress to reinstate limits on corporate and union spending on election campaigns”.^[80][81][82]

A Gallup Poll conducted in October 2009, after oral argument, but released after the Supreme Court released its opinion, found that 57 percent of those surveyed “agreed that money given to political candidates is a form of free speech” and 55 percent agreed that the “same rules should apply to individuals, corporations and unions”. However, in the same poll respondents by 52% to 41% prioritized limits on campaign contributions over protecting rights to support campaigns and 76% thought the government should be able to place limits on corporation or union donations.^[83][84]

Separate polls by various conservative organizations, including the plaintiff, Citizens United, and the Center for Competitive Politics found support for the decision.^[85] In particular, the Center for Competitive Politics poll^[86] found that 51% of respondents believed that Citizens United should have a right to air ads promoting Hillary: The Movie, although only 22% of the respondents had heard of the case.

Further court rulings

The case had a foreshadowing antecedent in a headnote in Santa Clara County v. Southern Pacific Railroad Company, 118 U.S. 394 (1886).

In December 2011, the Montana Supreme Court in Western Tradition Partnership, Inc. v. Attorney General of Montana upheld that state’s law limiting corporate contributions. Examining the history of corporate interference in Montana government that led to the Corrupt Practices Law, the majority decided that the state still had a compelling reason to maintain the restrictions. It ruled that these restrictions on speech were narrowly tailored and withstood strict scrutiny and thus did not contradict Citizens United. James C Nelson, dissenting, agreed with the majority that Citizens United was incorrectly decided but argued that Citizens United nonetheless applied and precluded the Court’s decision.^[87][88][89] Such a refusal to abide by a higher court’s ruling is rare. As Montana justices are elected, not appointed, Slate‘s Dahlia Lithwick calls this “an early judicial campaign ad”.^[87]

In February 2012, the Supreme Court blocked the Montana Supreme Court’s decision while authorizing the parties to file cert petitions. Justices Ginsburg and Breyer released a short statement, urging the Court to revisit Citizens United and “to consider whether, in light of the huge sums of money currently deployed to buy candidate’s allegiance, Citizens United should continue to hold sway”. The Court is expected to hear the appeal in the October 2012 term, unless it summarily reverses the decision based on the cert briefs.^[90]

Legislative responses

Legislative impact

The New York Times reported that 24 states with laws prohibiting or limiting independent expenditures by unions and corporations would have to change their campaign finance laws because of the ruling.^[91]

Senator Dick Durbin (D-IL) proposed that candidates who sign up small donors receive $900,000 in public money. Others proposed that laws on corporate governance be amended to assure that shareholders vote on political expenditures.^[71]

In February 2010, Senator Charles E. Schumer of New York, immediate past Chairman of the Democratic Senatorial Campaign Committee, and Representative Chris Van Hollen of Maryland, Chairman of the Democratic Congressional Campaign Committee, outlined legislation aimed at undoing the decision.^[92] In April 2010, they introduced such legislation in the Senate and House, respectively.^[93] On June 24, 2010, H.R.5175 (The DISCLOSE Act) passed in the House of Representatives but failed in the Senate. It would have required additional disclosure by corporations of their campaign expenditures. The law, if passed, would also have prohibited political spending by U.S. companies with twenty percent or more foreign ownership, and by most government contractors.^[94]

The DISCLOSE Act included exemptions to its rules given to certain special interests such as the National Rifle Association and the American Association of Retired Persons. These gaps within the proposal attracted criticism from lawmakers on both political parties. “They are auctioning off pieces of the First Amendment in this bill… The bigger you are, the stronger you are, the less disclosure you have,” said Republican Congressman Dan Lungren of California. Democratic Congressman Adam Schiff of California commented, “I wish there had been no carve-outs”.^[95]

The DISCLOSE Act twice failed to pass the U.S. Senate in the 111th Congress, in both instances reaching only 59 of the 60 votes required to overcome a unified Republican filibuster.^[96][97]

A trimmed back version of the DISCLOSE Act was reintroduced in both the House and Senate in 2012 but is not expected to pass.^{[citation needed]}

The legislatures of California, Hawaii and New Mexico have passed resolutions calling for the decision to be overturned. In addition, California is also planning on calling a constitutional convention to pass an amendment that would repeal the decision.^[98]