The Bipartisan Campaign Reform Act of 2002, also known as the McCain-Feingold Act, restricted “electioneering communications” by corporations. Electioneering communications are any materials made in support or opposition to a candidate for federal office. Sections 201 and 311 require disclosure of donors. The Act also prevented corporations from advocating for a candidate within sixty days of a general election and thirty days of a primary election. In January of 2008, a conservative nonprofit organization called Citizens United created a documentary to criticize democratic primary candidate, Hillary Rodham Clinton. The movie was called “Hillary,” and it tried to cast doubt on whether then-Senator Clinton would be a good president. Citizens United wanted the film to be available on cable television. However, the Federal Election Commission, or FEC, refused to allow the film to air since it was within thirty days of the democratic primary.
Citizens United argued that this restriction violated their First Amendment rights to political speech. The Supreme Court was asked to determine if the McCain-Feingold Act’s disclosure requirements posed an unconstitutional burden. The Court also had to determine if it was constitutional to limit the corporation’s political advocacy.
In a 5-4 decision, the Court held that the First Amendment protects the right of free speech regardless of whether the speaker is a mere citizen or large corporation. The ruling decided that corporations and other groups can freely advocate during elections. Justice Anthony Kennedy wrote the majority opinion for the Court, stating that the McCain-Feingold Act was an act of censorship. He wrote that the government may not “impose restrictions on certain disfavored speakers.”
However, the Court found that the disclosure requirements on donations were constitutional because disclosing donations gives voters information about what interests may be invested in which candidates. Also, the majority believed that transparency would prevent corruption.
Justice John Roberts wrote a concurrence. In it, he argued that “the First Amendment protects more than just the individual on a soapbox and the lonely pamphleteer.” He emphasized that the First Amendment issues took over the case and were most pertinent.
In Justice Scalia’s concurrence, he criticized the dissenting justices for disagreeing with the majority. In addition, he wrote that “we should celebrate rather than condemn the addition of this speech to the public debate.” Also, Scalia viewed regulations of donations to political campaigns as a way to stifle America’s free market economy.
Justice John Paul Stevens wrote a partial dissent. He agreed that disclosure requirements were constitutional, but thought that corporate political donations could be regulated. Stevens regarded corporations as significantly different from people. In addition, he did not view corporations as members of society. His dissent also noted that there is a compelling interest to curb corporations’ donations in elections.
The Citizens United decision is incredibly controversial and went against precedent. The Court had previously upheld restrictions against corporate donations to prevent corruption in Buckley v. Valeo (1976). Since the decision, there has been a massive uptick in political spending from corporations.
Also, super political action committees, or super PACs, have been created as a result of the Citizens United decision. Political action committees are organizations that spend money on political campaigns. Unlike traditional PACs, super PACs are not limited by the amount they can spend since they supposedly work independently from the candidate they are supporting.
While super PACs must disclose their donors under the Citizens United decision, dark money is often used. Dark money refers to donations from anonymous sources. There was a major increase in the use of dark money after the 2010 decision, with expenditures reaching $300 million during the 2012 presidential election. Most of the super PAC spending is from wealthy donors. However, dark money can lead to spending from foreign countries, which brings up questions of international election interference.
After the Citizens United decision, the President at the time, Barack Obama, gave a State of the Union address. In it, he criticized the Court’s decision and said the Court “open[ed] the floodgates for special interests - including foreign corporations - to spend without limit in our elections.”
Nonetheless, money has likely become the most powerful political tool. By allowing corporate spending, wealthy voices can outweigh the voices of those who are unable to donate. While wealthy interests have always existed, their representation has largely expanded since the Citizens United decision.