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Citizens United vs. Federal Election Commission

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Citizens United vs. Federal Election Commission is a case that has unexpectedly led to a landmark decision of the U.S. Supreme Court altering the whole system of funding electioneering communication. In 2010, a 5-4 decision of the Supreme Court overruled Austin vs. Michigan Chamber of Commerce of 1990 and partially overruled McConnel vs. Federal Election Commission of 2003 while upholding disclosure requirements of §201 and §311 of the Bipartisan Campaign Reform Act of 2002. Such decision has allowed corporations and unions to sponsor electioneering communication and to offer explicit support of a certain candidate while exploiting money from corporate funds.

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The decision of the Supreme Court was based on the rights granted to the American citizens by the First Amendment. However, many politicians as well as scholars and public personae have begun to question the constitutionality of the court decision. The opinions about the possible consequences of this case have divided the political and legal world into two opposite groups. For instance, President Barack Obama stated that “this ruling strikes at our democracy itself” and “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 interest” (Stevens, 2012).

Contrary to this opinion, many politicians as well as unions and corporations representatives have expressed a view that the court decision was “a tremendous victory, not only for Citizens United but for every American who desires to participate in the political process” (Bossie, 2010). Despite the heated debates over the decision, it has already become a reality that will certainly affect future election campaigns and the activity of the Federal Election Commission, one of the participants of the case.

The Federal Election Commission is “an independent regulatory agency that administers and enforces federal campaign finance laws” (Federal Election Commission, 2008). “It’s a rather limited role in the scheme of federal campaign finance law – we don’t write laws and we don’t decide whether they are constitutional. Rather we are told by Congress or the Courts what our next steps should be when they act” (Bauerly, 2011). The FEC was founded in 1975. Since then, it has always consisted of six Commissioners. They are nominated by the President and confirmed by the United States Senate. The FEC has jurisdiction over the funding of election campaigns of the Presidency and Vice Presidency, the United States Senate and the United States House of Representatives. Or, at least, observance and control of the campaign finances had been the main purpose of the FEC prior to the Supreme Court’s decision in the case Citizens United vs. Federal Election Commission. The latter significantly broadened the rights of corporations and probable sources of campaign funding.

Although the parts of the law that prohibit direct donations from corporate funds into a candidate’s campaign have not been repealed, it does not mean that corporations cannot use their funds to advocate for their favored candidate and try to manipulate the public opinion through commercials and some other media resources. According to the still existing regulations, the actions of corporations and unions are not supposed to be coordinated with the candidate’s office, yet they completely correspond to the candidate’s mainstream policy in reality. Nowadays, the main function of the FEC has become the disclosure of information about the source of the funds for the election campaigns and the spread of the financial involvement of unions and corporations into the elections.

At the time of the litigation concerning Citizens United, the FEC was composed of the following six Commissioners: Ellen Weintraub, Caroline C. Hunter, Cynthia L. Bauerly, Donald F. McGanh II, Matthew S. Petersen, and Steven T. Walther (Federal Election Commission, 2008). The history of the relations between the FEC and Citizens United goes back to the year 2004. During the 2004 presidential campaign, the FEC received a complaint from Citizens United that commercials of the film Fahrenheit 9/11 by Michael Moor were political advertising as the film was very critical of President Bush and his administration. Therefore, Citizens United believed that advertisements could not be broadcasted 30 days before a convention of a party or 60 days before an election in accordance with the Bipartisan Campaign Reform Act. §441b of the BCRA or, as is it often referred to, McCain-Feingold Act banned unions and corporations from utilizing their general treasury funds for electioneering communications. However, the complaint was rejected by the FEC on August 5 as they found no evidence of breaking the law. Moreover, the FEC dismissed also the following complaint of 2005 stating that the film was honest commercial practice and not expenditures or contributions, as they were defined in the Federal Election Campaign Act.

After such decisions of the FEC, Citizens United decided to broadcast their own film Hillary: The Movie during the 2008 election campaign. The FEC prohibited broadcasting the film on DirecTV and airing the commercials for it as the film was aimed at discrediting Hillary Clinton. Furthermore, the FEC found out that commercials as well as the film were sponsored from the general treasury funds of Citizens United and by the donations from several for-profit organizations. Citizens United filed a lawsuit against the FEC trying to remove the ban on the film and its commercials. Their main argument was that the film did not violate the law as it would be broadcasted only on DirecTV on demand and its 30-second commercials constituted no electioneering communication as they were fact-based and nonpartisan. In January 2008, the United States District Court for the District of Columbia ruled that the film commercials violated the BCRA provisions concerning the electioneering communications.

Citizens United did not agree with the lower court’s decision and filed an appeal before the Supreme Court of the United States. The case was docketed on August 18, 2008. Chief Justice was John G. Roberts. Associate Justices included Antonin Scalia, John P. Stevens, Stephen Breyer, Anthony Kennedy, Ruth Bader Ginsburg, Clarence Thomas, Sonia Sotomayor and Samuel Alito. Oral arguments were heard on March 24, 2009. Rearguments were heard on September 9, 2009. Decision was announced on January 21, 2010 with a 5-4 majority division of the Justices. When the case was first brought to the court, no one could predict that it would become a case concerning the constitutionality of restricting corporations and unions from exploiting their general treasury funds in the process of electioneering communications.

The case was transformed from a narrow one about McCain-Feingold and Hillary: The Movie to an assault on the law’s constitutionality during the initial arguments. On behalf of the Appellant, i.e. Citizens United, the arguments were held by Theodore B. Olson. The side of the Appellant was supported by Floyd Abrams, “for Senator Mitch McConnel as amicus curiae, by special leave of the Court”, and “Michael Boos, Fairfax, VA, Matthew D. McGill, Amir C. Tayrani, Justin S. Herring, Gibson, Dunn & Crutcher LLP, Washington, D.C.” (Supreme Court of the United States, 2010). The FEC was represented by Deputy Solicitor General Malcolm Stewart. During the rearguments, the FEC was argued for by Solicitor General Elena Kagan. Seth P. Waxman was supporting the Appellee “for Senator John McCain, as amici curiae, by special leave of the Court” (Supreme Court of the United States, 2010).
The FEC actually lost the case during the oral argument. There is an adage among the Supreme Court Bar that “an attorney can’t win his case at oral argument, but he can lose it” (How the FEC lost Citizens United…or so we think, 2009). That was what happened with Deputy Solicitor General Malcolm Stewart.

The discussion of an issue “If the movie were a book, would the government ban publishing the book if it mentioned a candidate for office within the election time frame?” became the climax of the case that made the majority of the Justices rule against the FEC and review the constitutionality of several laws (How the FEC lost Citizens United…or so we think, 2009). Stewart answered the above mentioned question affirmatively as he did not recognize the trap he had led himself into. He was presenting the government and supposed that the government had the power and right to ban the book if it seemed to violate the election law. Therefore, he claimed that “the Constitution would have permitted Congress to apply the electioneering communications restrictions…to additional media as well” (Citizens United v. Federal Election Commission: Oral argument , 2008).

After this initial statement, it became obvious that several judges including Justice Alito, Chief Justice Roberts, and Justice Breyer would rule against the FEC. They asked provocative questions and Stewart, though trying to avoid direct answers, had to follow his initial course and affirm that the government could really prohibit the publication of the book if it contained at least once the name of the candidate and was published on money obtained from the corporation’s general treasury funds. Justices were appalled at the wide breadth of the government’s powers in terms of limiting the freedom of speech. Thus, they decided to review the constitutionality of Section 441b of the BCRA, McConnel vs. Federal Election Commission, and Austin vs Michigan Chamber of Commerce. During the rearguments, Solicitor General Elena Kagan failed to reverse the case in favor of the FEC.

The Court was not unanimous in its decision. The majority comprised Chief Justice Roberts and Associate Justices Kennedy, Alito, Thomas, and Scalia. Associate Justices Stevens, Ginsburg, Breyer, and Sotomayor dissented from the Court’s general decision and they did not agree with the Court’s recognition of the fact that “First Amendment protection extends to corporations” (Citizens United v. Federal Election Commission: Opinion announcement, 2010). However, they concurred with Part IV dealing with disclosure regulations. Associate Justice Thomas, on the contrary, concurred with the general decision, but dissented from Part IV. Justice Stevens even read the part of his dissent, which emphasized his utmost displeasure with the court’s decision “to strike down a key part of the BCRA statute, Section 203 and to overrule both Austin against Michigan Chamber of Commerce and a portion of McConnel against the FEC” (Citizens United v. Federal Election Commission: Opinion announcement, 2010). In his opinion, it was a huge mistake that would lead to drastic consequences and would alter the whole system of election campaigns. The FEC has often lost the cases in the court, especially in the 90s, yet this failure seems to have the most long-lasting effect.

The mission of the Federal Election Commission has shifted its accents a bit after the failure in the Supreme Court, which is evident from the report by the Chair of the FEC Cynthia L. Bauerly “Accountability after Citizens United: The role of the Federal Election Commission”. In response to the Supreme Court’s decision, the Commission “declared that it will no longer enforce the statutory provisions or regulations prohibiting corporations and labor organizations from making independent expenditures and electioneering communications” (Bauerly, 2011). Nowadays, the FEC’s good share of efforts is aimed at disclosure that promotes accountability.

Disclosure has taken an extremely significant role with respect to accountability “given the current environment, in which many of the limits and prohibitions on activity – some of which have been around for a long time – are now considered constitutionally infirm” (Bauerly, 2011). The FEC emphasizes the role of reporting that promotes knowledge about the source of funding for political messages. It has become the primary asset of the FEC in trying to regulate the funding of electioneering communications by for-profit organizations. The Chair refers to the “post-Citizens United world” and presents a lot of interesting data about the election ads that the FEC has managed to gather (Bauerly, 2011). The FEC views its mission in providing the public with an opportunity to be informed about financial aspects of election campaigns with respect to their democratic decision-making. Moreover, the FEC provides advisory help to organizations that still register with it and ask for some elaboration of the disclosure rules “which currently cross reference sections of the regulations rendered meaningless by Citizens United” (Bauerly, 2011).

In conclusion, the current situation has aroused an urgent necessity for the FEC to seriously consider whether past interpretations of the disclosure rules remain adequate in a post-Citizens United world. The case Citizens United vs. Federal Election Committee has significantly influenced the political arena of the USA. The Supreme Court’s decisions still raise a lot of controversy, especially in the light of coming elections.

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