In Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), the Supreme Court held that the First Amendment protects the rights of corporations and unions to engage in “electioneering communications.” The freedom of speech includes the freedom of citizens to associate in the form of a corporation or a union and to broadcast communications within 30 days of a primary or 60 days of a general election that refer to candidates for a federal office. In 2001, Congress had passed the Bipartisan Campaign Reform Act (BCRA), which prohibited such communications. The law, however, did not prohibit political action committees (PACs) from engaging in express advocacy or electioneering communications, and corporations and unions may finance PACs from segregated funds (separate from the general treasury funds of the corporation or union).

The Court recognized a governmental interest in preventing corruption or the appearance of corruption, but the Court rejected the “antidistortion interest” that the Court had earlier approved in Austin v. Michigan Chamber of Commerce, 494 U. S. 652 (1990)—that is, an interest in preventing the “corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form.” Austin was overruled.

“When Government seeks to use its full power… to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves.”

The Court observed that the Austin antidistortion rationale would allow government to “ban the political speech of millions of associations of citizens,” most being small corporations without large amounts of wealth. While the prohibition of electioneering communications would “prevent corporations, including small and nonprofit corporations, from presenting both facts and opinions to the public,” it would do little to reduce the influence of money in politics. Lobbying by wealthy corporations occurs “on a regular basis” beyond the reach of campaign finance regulations such as BCRA, and “smaller or nonprofit corporations cannot raise a voice to object when other corporations, including those with vast wealth, are cooperating with the government.” Lobbying and other corporate communications, the Court noted, “are often unknown and unseen.” In contrast, political speech meeting the definition of electioneering communications is public “and all can judge its content and purpose.”

The Court upheld some forms of campaign finance restrictions, including the prohibition on direct contributions to candidates by corporations and unions and independent expenditures that expressly advocate the election or defeat of a candidate. Direct contributions to a candidate might be given as payment for political favors or such contributions could give the appearance of a political quid pro quo, and the Court therefore found limits on direct contributions to be constitutional. The absence of prearrangement or coordination between independent expenditures and the candidate’s campaign “alleviates the danger that expenditures will be given as a quid pro quo for improper commitments from the candidate” (Buckley v. Valeo, 424 U. S. 1 (1976)). The Court found that “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.” The possibility that donors, as a result of such expenditures, would gain influence or access to elected officials would not mean that the officials were corrupt, although there may be cause for concern:

“If elected officials succumb to improper influences from independent expenditures; if they surrender their best judgment; and if they put expediency before principle, then surely there is cause for concern. We must give weight to attempts by Congress to seek to dispel either the appearance or the reality of these influences. The remedies enacted by law, however, must comply with the First Amendment; and, it is our law and our tradition that more speech, not less, is the governing rule. An outright ban on corporate political speech during the critical preelection period is not a permissible remedy.”

The Court found permissible remedies in BCRA’s disclaimer and disclosure provisions. Although these provisions may “burden the ability to speak,” they “do not prevent anyone from speaking.” Disclosure (any person who spends more than $10,000 on electioneering communications within a calendar year must file a disclosure statement) is justified by the governmental interest in providing voters with information about the sources of election-related spending. Disclaimer requirements (for example, identifying who is responsible for the content of televised political advertising) provide the electorate with information about the person or group who is speaking.

“The First Amendment protects political speech; and disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way. This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.”

Citizens United affirmed the power and the responsibility inherent in the First Amendment. Congress may not prohibit electioneering by corporations. It is each voter’s responsibility to judge the value of political campaign messages and how much to allow them to influence the voting decision.

“The First Amendment underwrites the freedom to experiment and to create in the realm of thought and speech. Citizens must be free to use new forms, and new forums, for the expression of ideas. The civic discourse belongs to the people, and the Government may not prescribe the means used to conduct it.”


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