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Debate: Citizens United v. Federal Election Commission

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Should corps be able to spend without limit in elections?

Background and context

Citizens United v. Federal Election Commission, 558 U.S. ___ (2010), is a landmark 5-to-4 decision by the United States Supreme Court that corporate funding of independent political broadcasts in candidate elections cannot be limited, because doing so would be in noncompliance with the First Amendment. The decision resulted from the non-profit corporation Citizens United's case before the court regarding whether the group's film -
Hillary: The Movie - could be considered a campaign advertisement under the 2002 Bipartisan Campaign Reform Act, commonly known as the McCain-Feingold Act, and whether subsequent restrictions under the law on such direct advertisement spending could be justified. The Court's decision struck down a provision of the McCain-Feingold Act that banned for-profit and not-for-profit corporations and unions from broadcasting “electioneering communications” in the 30 days before a presidential primary and in the 60 days before the general elections. The decision also completely overruled Austin v. Michigan Chamber of Commerce (1990) and partially overruled McConnell v. Federal Election Commission (2003). The decision upheld the requirements for disclaimer and disclosure by sponsors of advertisements, and the ban on direct contributions from corporations or unions to candidates, in part IV. The decision has been met with significant debate. Of particular note, was President Obama's opposition in his January 24, 2010 State of the Union where he said: "Last week, the Supreme Court reversed a century of law 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. They should be decided by the American people, and that's why I'm urging Democrats and Republicans to pass a bill that helps..." [1] These arguments and others are documented below.

See the Supreme Court's January 21, 2010 majority opinion on Citizens United vs Federal Election Commission here, and Wikipedia's article on the topic here.


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Free speech: Does unlimited spending uphold free speech?

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Pro

  • Wrong to fine/jail citizens for political speech. Justice Anthony M. Kennedy: "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."[2]
  • First amendment protects more than just pampleteers. "The First Amendment protects more than just the individual on a soapbox and the lonely pamphleteer."
  • Limiting corp spending is slippery slope against free speech. Chief Justice Roberts said that limitations on an anti-Clinton movie called "Hillary: the Movie." before the 2008 primary elections would lead to broader restrictions: "would allow censorship not only of television and radio broadcasts, but of pamphlets, posters, the Internet and virtually any other medium that corporations and unions might find useful in expressing their views on matters of public concern."[3]
  • Spending limits foster equal, not free, speech. Cato Institute researchers 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."[4]
  • Why limit speech of corps/unions but not others? Anthony Dick in The National Review wrote: "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?" [5]
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Con

  • The right to free speech does not apply to corps. "The Court's blow to democracy." New York Times Editorial. January 21, 2010: "The founders of this nation warned about the dangers of corporate influence. The Constitution they wrote mentions many things and assigns them rights and protections — the people, militias, the press, religions. But it does not mention corporations. [...] Most wrongheaded of all [in the Supreme Court's 2010 decision] is its insistence that corporations are just like people and entitled to the same First Amendment rights. It is an odd claim since companies are creations of the state that exist to make money. They are given special privileges, including different tax rates, to do just that. It was a fundamental misreading of the Constitution to say that these artificial legal constructs have the same right to spend money on politics as ordinary Americans have to speak out in support of a candidate."
  • Corporate spending doesn't count as "speech". Free speech is protected under the Constitution, meaning anyone can say what they want. But, spending unlimited amounts of money to propagate a message, intimidate candidates, and sway elections is not protected. In other words, corporate speakers do have some free speech rights to develop an election ad (through such things as PACs), but not to then spend unlimited amounts of money to propagate their message.
  • Spending limits protect voter voices from being priced-out Karen Finney. Democratic consultant and commentator; former spokesman for the Democratic National Committee, wrote in a January 24, 2010 Washington Post piece: "In a decision that supposedly ruled on the side of free speech, the court actually put a price tag on that speech. A price tag that could result in the voices of individual Americans being priced out of their ability to actually be heard, as millions of dollars from multinational corporations can now be spent to tip the scales in an American election."[6]
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Assoc: Does unlimited spending improve speech in assoc?

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Pro

  • Spending limits infringe free speech in assocs. Justice Antonin Scalia stated that Justice John Paul Stevens dissent against the Citizens United ruling 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."[8]


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Con

  • Corps are not a form of free assoc and speech. The constitutional law scholar Laurence H. Tribe: "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."[9]


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Democracy: What will the effect be on elections/democracy?

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Pro

  • Spending limits harm speech of more than just corps. 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."[10]
  • Unlimited spending protects voice of free enterprise. Cleta Mitchell. "Partner at Foley & Lardner who works in campaign finance law; filed a friend-of-the-court brief in support of Citizens United, on behalf of two advocacy organizations opposing the ban on corporate expenditures: "What businesses, large and small, should do is spend time and money educating their employees, vendors and customers about candidates and officeholders whose philosophies and voting records would destroy or permanently damage America's free enterprise system. [...] Why are Democrats afraid of that voice?"
  • Shareholders will limit corp spending on elections. Kenneth Gross. Leads the political law practice at Skadden Arps; former associate general counsel of the Federal Election Commission. Wrote in a January 24, 2010 Washington Post piece[11]: "No doubt, trade associations will look for ways to raise funds to attract or support candidates, but they will not find many deep, willing pockets among corporate members. Budgets are tight and shareholders will be keeping an eye on corporate spending."
  • Corp election spending limited by transparency laws Kenneth Gross. Leads the political law practice at Skadden Arps; former associate general counsel of the Federal Election Commission. Wrote in a January 24, 2010 Washington Post piece[12]: "Also, many corporations have already signed on to transparency agreements regarding political spending. So, funding by publicly held corporations of groups trying to disguise their mission will be few and far between. This may not be the popular, prevailing view of the implications of the Citizens case -- but it is likely to be at least the short-term reality."[13]
  • Citizens United decision does not allow spending on campaigns. Jon Witold Baran. "Stamped Toward Democracy." Washington Post. January 25, 2010: "Will corporations and unions be able to give money to candidates or political parties? No. Federal law, which regulates campaigns for president, the Senate and the House, prohibits such contributions. The ban was left untouched by the Supreme Court. Can corporations spend money in cahoots with candidates and political parties? No. The Supreme Court decision addressed only 'independent expenditures,' which are, by definition, 'not coordinated with a candidate.' Monies spent in collaboration with candidates or parties are treated as contributions — and are still banned."
  • More spending does not necessarily benefit candidates. University of Miami School of Business assistant professor of economics Christopher Cotton wrote that “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."[14]
  • New info tech makes limits on speech unrealistic. Supreme Court majority January 21, 2010 opinion on Citizens United vs Federal Election Commission: "3) The Government’s asserted interest in protecting share-holders from being compelled to fund corporate speech, like the anti-distortion rationale, would allow the Government to ban political speech even of media corporations. The statute is underinclusive; it only protects a dissenting shareholder’s interests in certain media for 30 or 60 days before an election when such interests would be implicated in any media at any time."
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Con

  • Unlimited spending allows special interests to dominate elections President Barack Obama called the Supreme Court's Citizens Union decision in his 2010 January State of the Union address: "With its ruling today, the Supreme Court has given a green light to a new stampede of special interest money in our politics. It is a major victory for big oil, Wall Street banks, health insurance companies and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans. This ruling 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. "[15]
  • Limited corp spending protects govt of/by/for people. Karen Finney. Democratic consultant and commentator; former spokesman for the Democratic National Committee, wrote in a January 24, 2010 Washington Post piece: "At the very moment Americans' mistrust of big corporations, big government and large institutions has reached a fever pitch, the Supreme Court moved to replace a government of, for and by the people with a government that can be bought and paid for by just about any major corporation -- from Exxon to Russian-owned Lukoil to China's CPC Corp."[16]
  • Citizens United illogically increases money in elections Justice Stevens, with whom Justice Ginsburg, Justice Breyer, and Justice Sotomayor dissented from the majority ruling on Citizens United, arguing: "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."[17]
  • Unlimited spending lets corps intimidate unwanted laws. Jody Grage, treasurer of the Green Party, stated "The decision [...] cancels the idea that candidates run for public office to serve the public interest. The ruling will help block government measures to curb global warming, regulation of financial firms, health care reform, consumer rights, and all other protections for 'We the People' against corporate power."[18]
  • Unlimited spending allows corps to fight election regulations. Justice John Paul Stevens said in January of 2010 in a dissenting opinion following the Supreme Court's 5-4 vote to allow unlimited corporate spending in elections: "cripple the ability of ordinary citizens, Congress and the states to adopt even limited measures to protect against corporate domination of the electoral process."[19]
  • Ruling pretends corp spending doesn't corrupt. The Christian Science Monitor wrote that the Court had declared "Roberts Court declares 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."[20]
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Candidate intimidation: Does allow for candidate intimidation?

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Pro

  • Unlimited spending lets candidates focus on message over fundraising. One of the main problems in elections is that candidates are typically strapped for cash, and often must spend the majority of their time fundraising, instead of focusing on their message. Unlimited corporate spending, in addition to unlimited political party spending and individual donorship would allow candidates to focus on their message, the changes they want to make, their plans for governing or voting while in office, and on informing the general public about these plans so that they can make a more informed decision about their vote.
  • Unlimited spending breaks stranglehold of incumbents Capital University Law School professor Bradley A. Smith, a former chair of the Federal Election Commission and a long-term campaign finance reform opponent, wrote that the major opponents of political free speech are "incumbent politicians, shocked by the apparent tectonic shift in politics of late" 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 because it breaks their damaging stranglehold on existing seats, which exist largely because they are able to raise more money than prospective up-start rivals.
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Con

  • Unlimited spending allows corps to intimidate candidates Senator Russell Feingold (D-Wis), co-author of the McCain-Feingold campaign finance legislation, said to the Washington Post in January of 2010: "Oil companies, with virtually no harm to their balance sheets, can now try to "take out" members of Congress who don't toe their company line on energy policy. Foreign-owned companies ¿ even those owned and controlled by other governments ¿ are free to underwrite the candidates of their choice."[21]
  • Unlimited spending forces politicians to focus more on fundraising. "A Bad Day for Democracy". The Christian Science Monitor. January 22, 2010: "The fear factor of unlimited corporate political spending this decision creates will now fuel a rapidly escalating fundraising arms race in Congress. With big firms now free to spend jaw-dropping sums to oppose or intimidate them, elected officials will feel compelled to spend more and more of their time raising money, thereby further distracting Congress from the pressing issues of the day."
  • Unlimited spending engenders corporate-sponsored candidates. Anna Burger. Secretary-treasurer of the Service Employees International Union, wrote in a January 24, 2010 piece: "There can be no doubt: The voice of everyday working Americans in the political process will be muted. How can they compete for airtime with the deep pockets of multinational corporations? The court's decision has said loud and clear that Mr. Smith has no business in Washington -- that seat's been sponsored by Wal-Mart."[22]


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Radical change? Was Citizens United a modest or radical change?

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Pro

  • Unlimited spending exists some places w/o problem. Jon Witold Baran. "Stamped Toward Democracy." Washington Post. January 25, 2010: "There is also no factual basis to predict that there will be a 'stampede' of additional spending. As the court noted, 26 states and the District of Columbia already permit independent corporate and union campaign spending. There have been no stampedes in those states’ elections."


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Con

  • Citizens United case threatens elected institutions. Justice Stevens, with whom Justice Ginsburg, Justice Breyer, and Justice Sotomayor joined in dissenting from the Citizen United ruling, arguing 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."[23]
  • Unlimited spending allows more than through PACs. Greg Palest. "Manchurian Candidates: Supreme Court allows China and others unlimited spending in US elections." OpEdNews. January 23rd, 2010: "Right now, corporations can give loads of loot through PACs. While this money stinks (Barack Obama took none of it), anyone can go through a PAC's federal disclosure filing and see the name of every individual who put money into it. And every contributor must be a citizen of the USA. [...] But under today's Supreme Court ruling that corporations can support candidates without limit, there is nothing that stops, say, a Delaware-incorporated handmaiden of the Burmese junta from picking a Congressman or two with a cache of loot masked by a corporate alias."
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Foreign control: Can unlimited spending avoid foreign influence?

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Pro

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Con

  • Unlimited spending allows foreign corps to sway elections. Justice John Paul Stevens said in January of 2010 in a dissenting opinion following the US Supreme Court's 5-4 vote to allow unlimited corporate spending in elections: "Under today's decision, multinational corporations controlled by foreign governments" would have the same rights as Americans to spend money to sway U.S. elections, he said.[24]


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Media: Should other comps be able to spend w/o limit like media?

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Pro

  • If media can endorse, why can't other comps? Campaign finance attorney Cleta Mitchell, who had filed a friend-of-the-court 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."[25]
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Con

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Favor: Does unlimited corp spending not favor anybody?

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Pro

  • Unlimited spending fosters voices from all sides and orgs. Mitch McConnell and Floyd Abrams. "No: Free speech, no matter the speaker, is what our Constitution protects." The Atlanta Journal. January 27, 2010: "Citizens United’s orientation is sharply to the right. On the left, BCRA required advertisements for Michael Moore’s anti-Bush documentary “Fahrenheit 9/11” to be pulled off the airwaves as the Republican Convention of 2004 approached. And as the national election approached that year, the ACLU was required to avoid mentioning President Bush in advertisements it was publishing denouncing the Patriot Act. [...] Given the court’s ruling, corporations and unions will now be free to participate in the political process to a greater degree than had previously been possible. The suppression of speech by both not-for-profit and for-profit corporations is over, and short of a constitutional amendment Congress may not reimpose the current speech ban or anything like it."
  • Corp spending breaks media's undue power in elections. Cleta Mitchell. "Partner at Foley & Lardner who works in campaign finance law; filed a friend-of-the-court brief in support of Citizens United, on behalf of two advocacy organizations opposing the ban on corporate expenditures: "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."[26]
  • If media corps have "right to speak", why not other corps?
  • Unlimited spending frees up advocacy groups in election. Cleta Mitchell. "Partner at Foley & Lardner who works in campaign finance law; filed a friend-of-the-court brief in support of Citizens United, on behalf of two advocacy organizations opposing the ban on corporate expenditures: "The real victims of the corporate expenditure ban have been nonprofit advocacy organizations across the political spectrum. After the 2004 election, the Sierra Club paid a $28,000 fine to the Federal Election Commission for distributing pamphlets in Florida contrasting the environmental records of the two presidential and U.S. Senate candidates. Because the Sierra Club is a corporation, the FEC charged it with making an illegal corporate expenditure."[27]


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Con

  • Unlimited corporate spending favors Republicans. "The Court’s Blow to Democracy." New York Times. January 21, 2010: "The Citizens United ruling is likely to be viewed as a shameful bookend to Bush v. Gore. With one 5-to-4 decision, the court’s conservative majority stopped valid votes from being counted to ensure the election of a conservative president. Now a similar conservative majority has distorted the political system to ensure that Republican candidates will be at an enormous advantage in future elections."
  • Unfair to free corp spending, while limiting camp. fundraising. Cleta Mitchell. "Partner at Foley & Lardner who works in campaign finance law; filed a friend-of-the-court brief in support of Citizens United, on behalf of two advocacy organizations opposing the ban on corporate expenditures, wrote in a January 24th, 2010 Washington Post article: "Campaigns, corporations and unions can all now spend as much as they want on campaign ads. But campaign finance laws dramatically limit how much candidates (though not corporations or unions) can raise and from whom. Generally, candidates may only accept contributions up to $2,400 per election from individuals and up to $5,000 per election from PACs. In contrast, Citizens United allows corporations and unions to spend unlimited sums attacking or supporting candidates. So picture this: An interest group makes a single phone call to raise $250,000 for attack ads in the waning days of a campaign. The candidate must find more than 100 willing donors, able to give the maximum permissible $2,400 contribution, to answer those ads with an equivalent buy. [...] One solution is for Congress to repeal the limits on how much and from whom candidates can raise money. However, those who see the court's opening of the doors to unlimited corporate spending as a problem are unlikely to see unlimited corporate contributions to candidates as the solution. Rather, Congress should repeal the limits on how much national political parties can spend in coordination with their candidates, which might restore some balance to the system."[28]


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Shareholders: Is unlimited corp spending in the interests of shareholders?

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Pro

  • Shareholders aren't concern with media, why w/ other corps? Supreme Court majority January 21, 2010 opinion on Citizens United vs Federal Election Commission: "3) The Government’s asserted interest in protecting share-holders from being compelled to fund corporate speech, like the anti-distortion rationale, would allow the Government to ban political speech even of media corporations. The statute is underinclusive; it only protects a dissenting shareholder’s interests in certain media for 30 or 60 days before an election when such interests would be implicated in any media at any time."


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Con

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Public opinion: Does the public support Citizens United?

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Pro

  • Public supports free speech of corps and unions. Anthony Dick in The National Review noted “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."[29] According to Jordan Fabian, 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 is 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.[30]


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Con

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Pro/con sources

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Pro


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Con


See also

External links


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