Citizens United Decision: Bring On The Spending

The Supreme Court may have changed the landscape of campaign spending today: in issuing its decision on Citizens United v. Federal Election Commission, it announced that corporations and unions can now spend money directly in support of candidates.

Justice Kennedy, in the majority opinion, reasoned that the government can't discriminate against speakers based on their corporate identities, and that "all speakers, including individuals and the media, use money amassed from the economic marketplace to fund their speech, and the First Amendment protects the resulting speech."

This basically eliminates a middleman: before today, corporations and unions had to set up PACs (political action committees), filed separately with the IRS, that would receive donations. And they did. Corporations and unions spend millions of dollars on elections. Now, however, the accounting firewall is gone, and Wal-Mart or the Service Employees International Union, for instance, can spend their corporate/union money directly on candidates. Highlights from the opinion below.

Although the First Amendment provides that "Congress shallmake no law . . . abridging the freedom of speech," §441b's prohibitionon corporate independent expenditures is an outright ban on speech, backed by criminal sanctions. It is a ban notwithstanding the factthat a PAC created by a corporation can still speak, for a PAC is aseparate association from the corporation. Because speech is an essential mechanism of democracy--it is the means to hold officials accountable to the people--political speech must prevail against lawsthat would suppress it by design or inadvertence. ...

Laws burdening such speech are subject to strict scrutiny, which requires the Government to prove that the restriction "furthers a compelling interest and is narrowly tailored to achieve that interest." WRTL, 551 U. S., at 464. This language provides a sufficient framework for protecting the interests in this case. Premised on mistrust of governmentalpower, the First Amendment stands against attempts to disfavor certain subjects or viewpoints or to distinguish among different speakers, which may be a means to control content. The Government may also commit a constitutional wrong when by law it identifies certain preferred speakers. There is no basis for the proposition that, in thepolitical speech context, the Government may impose restrictions oncertain disfavored speakers. Both history and logic lead to this conclusion. Pp. 20-25

On the (lack of) difference between corporations and individuals, and a shout-out to media companies:

It is irrelevant for First Amendment purposes that corporate funds may "have little or no correlation to the public's support for the corporation's political ideas." Austin, supra, at 660. All speakers, including individuals and the media, use money amassed from the economic marketplace to fund their speech, and the First Amendment protects the resulting speech. Under the antidistortion rationale, Congress could also ban political speech of media corporations. Although currently exempt from §441b, they accumulate wealth withthe help of their corporate form, may have aggregations of wealth,and may express views "hav[ing] little or no correlation to the public'ssupport" for those views. Differential treatment of media corporations and other corporations cannot be squared with the First Amendment, and there is no support for the view that the Amendment's original meaning would permit suppressing media corporations' political speech.


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Chris Good is a political reporter for ABC News. He was previously an associate editor at The Atlantic and a reporter for The Hill.

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