Michael Watts

PSCI 3200
30 April 2012

Citizens United v. Federal Election Commission (2010)

The History, Review, Instant Impact and Potential Long Term Effects on the American
Electioral and Political Processes

Former MSNBC news commentator Keith Olbermann said in a Special Comment on his
program Countdown, The decision, which in mythology would rank somewhere between The
Bottomless Pit and The Opening of Pandoras Box, got next to no coverage in the right-wing
media today, almost nothing in the middle, and a lot less than necessary on the left.
Even though the American Civil Liberties Union (ACLU) brought this case to Supreme
Court, there was a split among members due to the possible negative ramifications if the court
ruled in their favor.
Senator Mitch McConnell of Kentucky, the Republican Partys Senate leader said about
this case leveled the playing field for political contributions. During the annual State of the
Union Address to a joint-session of Congress and televised to a national audience, President
Barack Obama said (statement). Supreme Court Justice Samuel Alito was caught by the
television cameras mouthing the words, Thats not true.
While Republican leaders and other well known conservative organizations praised the
decision as a victory for the First Amendment, Democratic leaders, liberal-leaning
commentators, retired Supreme Court Justices, and the President of the United States condemned
this decision and stated their concerns about the long term ramifications on our democracy. What
Supreme Court case could cause a deep divide among politicians, news media personalities,
other public figures, ordinary citizens, and create a strange alliance between the ACLU and the
political right?
On 21 January 2010 the Supreme Court of the United States released their decision
concerning litigation brought by the non-profit organization called Citizens United against the
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Federal Election Commission (FEC). Citizens United felt that restrictions in the Bipartisan
Campaign Reform Act of 2002 (BCRA), commonly referred to as McCain-Feingold Act named
after the main co-sponsors of the bill in the US Senate, violated their First Amendment Rights.
The leaders of this organization believed that a portion of the McCain-Feingold Act severely
limited their ability to air advertisements on television a documentary that was critical of thenSenator Hilary Clinton during her campaign for the Democratic Partys Presidential Nomination
in 2008. Citizens United planned to air this documentary ahead of primary elections in certain
states but McCain-Feingold Act specifically stated that corporations and unions are not allowed
to fund broadcast advertisements mentioning a candidate, or electioneering communications,
within thirty (30) days of a primary election or sixty (60) days of a general election.
The high court ruled in a controversial 5-4 decision that Citizens United was within their
First Amendment Rights to display on television advertisements for the documentary outside of
the window concerning electioneering communications. Though most people remember the
decision concerning the electioneering communication provision of the McCain-Feingold Act,
there was also an opinion where one Supreme Court Justice sided with the majority but dissented
in that the Justice would have ruled that public disclosure laws concerning campaigns violated
the First Amendment as well.
Citizens United v. FEC (2010), or the Citizens United Decision, is a history of how
political parties and candidates for office are financed in the United States along with the
question of corporate personhood in this country. Do corporations or any entity equivalent to
such have the same rights as a person? The Citizens United Decision impacted the McCainFeingold Act, but its ramifications did not end there. This decision has its roots in a Supreme
Court case ruled on from 125 years ago. In Santa Clara County v. Southern Pacific Railroad

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(1886), the Supreme Court ruled unanimously that under the Equal Protection Clause of the 14th
Amendment of the United States Constitution that a corporation had the same rights as a person
when it came to contracts and property rights. This was the first instance where corporate
personhood was introduced into the American lexicon. The basis for this case lies in the
Jurisdiction and Removal Act of 1875. The original intent of this act was to provide a means of
equal justice under the law for newly emancipated slaves in the Southern States, but Southern
Pacific Railroad used it to their advantage to challenge tax law in the state of California and
present their case to the high court. Chief Justice Morrison Waite, appointed during the
Reconstruction Era by President Ulysses S. Grant, stated prior to hearing oral arguments:

"The Court does not wish to hear argument on the question whether the provision in the
Fourteenth Amendment to the Constitution which forbids a state to deny to any person within
its jurisdiction the equal protection of the laws applies to these corporations. We are all of
opinion that it does. "

With this ruling, it was only a matter of time before the question of corporations
influencing the electoral political process would enter the national debate. In order to counter the
idea corporations are afforded the same rights as people when it came to the political process,
Congress made attempts to introduce legislation to restore balance. During his bid for his first
full term as President in 1904, Theodore Roosevelt was accused of accepting of corporate
contributions. President Roosevelt stated in his 1905 State of the Union address:

All contributions by corporations to any political committee or for any political purpose

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should be forbidden by law; directors should not be permitted to use stockholders' money
for such purposes; and, moreover, a prohibition of this kind would be, as far as it went, an
effective method of stopping the evils aimed at in corrupt practices acts. Not only should
both the National and the several State Legislatures forbid any officer of a corporation
from using the money of the corporation in or about any election, but they should also
forbid such use of money in connection with any legislation save by the employment of
counsel in public manner for distinctly legal services.

Within two years of the Presidents address, Congress passed the Tillman Act of 1907.
Even though it was landmark legislation in attempting to reign in corporate personhood in that it
provided penalties for corporations making contributions to candidates, there was little means of
enforcement. The issue of corporate personhood returned to the Supreme Court in Connecticut
General Life Insurance Company v. Johnson (1938) where could a one state, Johnson who was
the attorney general of California, invoke taxes over a corporation based in another state. Even
though the Court in this case upheld that California did not have the right to tax a corporation
based in Connecticut, Justice Hugo Black dissented that:

I do not believe the word person in the Fourteenth Amendment includes corporations.
The doctrine of stare decisis, however appropriate and even necessary at times, has only
a limited application in the field of constitutional law. This Court has many times
changed its interpretations of the Constitution when the conclusion was reached that an
improper construction had been adopted.

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Over a period of 70 years various Congresses and Presidents comprised of members of

both major United States political parties passed the Federal Corrupt Practices Act, Hatch Act,
Smith-Connolly Act of 1943, Taft-Hartley Act of 1947, and various amendments in order to limit
the monetary influences of outside organizations on the political process. The 1970s saw even
greater reforms to the financing of campaigns with the passage of the Federal Election Campaign
Act (FECA) of 1971 and subsequent amendments passed in 1974 due to allegations of financial
abuse during the previous Presidential Campaign and the Watergate scandal forcing the
resignation of a President, and again in 1976 and 1979. The 1974 amendments to the FECA led
to the creation of the FEC. As shown in previous attempts to introduce grand reforms to the
election process, a case was heard before the Supreme Court questioning the constitutionality of
the legislation. Buckley v. Valeo (1976) was a difficult case to discern but the court issued two
rulings. The first was that the contribution limits placed on a candidate using their personal funds
to contribute to a campaign did violate a persons First Amendment Rights. The second ruling
stated that overall the FECA did not violate the First Amendment was more direct and uses the
phrase the integrity of our system of representative democracy seven times. Specifically in the
amici curiae brief about the activities of politicians running for elected office, it states:

Because fundraising increasingly dominates the time of candidates, the integrity of the
American system of republican government is deteriorating, as time is taken from the
many and focused on asking for money from the few. The instant case provides the Court
with an opportunity to consider issues that are central to the integrity of our system of
representative democracy, as States and localities across the nation seek to address the
impact of fundraising on campaigns and on officials performance in elected office.

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Even though in the Buckley decision the Supreme Court was more in agreement about the
nature of outside influences on the political process, within two years the court would release a
5-4 decision concerning a Massachusetts law on campaign finance in First National Bank of
Boston v. Bellotti (1978). Writing for the majority Justice Lewis Powell stated that the court
find(s) no support in the First or Fourteenth Amendment, or in the decisions of this Court, for
the proposition that speech that otherwise would be within the protection of the First Amendment
loses that protection simply because its source is a corporation that cannot prove, to the
satisfaction of a court, a material effect on its business or property. Ironically prior to his
nomination to the Supreme Court by President Richard Nixon, Justice Powell wrote a document
in August 1971 titled Confidential Memorandum: Attack of American Free Enterprise System
while he was still employed for a law firm that represented many tobacco companies. There were
concerns that the pro-corporate views expressed in the document might produce a conflict of
interest. Instead, Justice Powells well-known moderation ruled in favor of the Massachusetts
law. The Supreme Court continued to uphold precedent as established in the Buckley and First
National Bank of Boston decisions when Austin v. Michigan Chamber of Commerce (1990)
reached the high court during the Chief Justice William Rehnquist Court Era.
Citizens United became involved in the long documented struggle between Congress and
the Supreme Court on the issue concerning campaign finance laws and their constitutionality. In
2003, the Bipartisan Campaign Reform Act (BCRA), again referred to as the McCain-Feingold
Act, became effective law. Instead of referring it by its official title, it is commonly referred by
the chief co-sponsors of the bill in the Senate.
Russ Feingold served in the United States Senate representing Wisconsin from 1993-2011

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as a Democrat. Feingold represented the more progressively liberal views of his party such as
elimination of capital punishment, support of universal health care, coming out in support of
equal marriage laws for gays and lesbians, and against the North American Free Trade Act
(NAFTA). It was rumored that Feingold might challenge Wisconsin Governor Scott Walker in
the upcoming recall election, but instead he has taken up a teaching position at Marquette
University Law School in Milwaukee and promoting his recent book While America Sleeps: A
Wake-Up Call for the Post-9/11 Era.
John McCain, a Republican and the Senior Senator from Arizona, is known for his life of
public service. His grandfather and father were naval officers, so Senator McCain followed their
path into the Navy. In 1958, he graduated from the Naval Academy and was designated a naval
aviator. During his naval career, McCain escaped death two times; the first was a fire on the
flight deck of the USS Forrestal (CVA-59) that completely engulfed his aircraft in 1967. The
second incident was when he was shot down over North Vietnam and taken in as a prisoner of
war (POW). For the next 5-1/2 years, McCain and his fellow POWs endured torture at the hands
of their captors in a prison infamously referred to as the Hanoi Hilton. Upon his release in
1973, McCain continued his career in the Navy until retirement at the rank of Captain in 1981.
After retirement, McCain entered politics, first running as a member of the United States House
of Representatives from Arizona in 1982 and then running as the replacement to Senator Barry
Goldwater in 1986. He ran for his partys nomination for President twice in 2000, losing to the
eventual President in George W. Bush during the primary, and 2008, where he was the
Republican nominee but lost to the current President in Barack Obama.
Even though both men were entrenched in their respective political views, they
occasionally went against their party. John McCain fought against the tobacco industry, pork-

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barrel spending, and based on his personal experiences, came out against the practice of water
boarding and called it torture. Russ Feingold voted against the USA PATRIOT Act in 2001, was
among a handful of Democrats that voted against the authorization of force against Iraq in 2003,
and voted against the confirmation of Timothy Geithner as the Secretary of the Treasury in 2009.
McCain and Feingold, despite their many differences, worked for seven years on this piece of
legislation to remedy the problems created by a combination of Supreme Court decisions striking
down certain provisions of previous laws, incomplete or unclear statutes, and Political Action
Committees (PACs) finding ways around the old legislation.
The group Citizens United desired to air a film on television that was critical of thenSenator Hilary Clinton in 2008. Their reasoning was that Michael Moores documentary
Fahrenheit 9/11 which was highly critical of the Bush Administration in their conduct
concerning anti-terrorism efforts prior to the September 11th attacks and their drumming up for
war in Iraq based on questionable intelligence, was allowed to air prior to the 2004 election in
movie theaters and on television. The difference was that Fahrenheit 9/11 was backed by a forprofit movie company, while Citizens Uniteds film was backed by a non-profit organization.
Filing suit in the District Court of Washington, DC the case was heard by a three-judge panel and
ruled in favor of the FEC. With assistance from the ACLU, Citizens United was able to get their
case heard before the high court in 2009.
After arguments, the Supreme Court released their findings and ruled in favor of Citizens
United on 21 January 2010. It was a controversial 5-4 decision along partisan lines. Justice
Anthony Kennedy wrote the opinion for the majority. Even though the case is final there is still
questions about the case; specifically the political involvements of Supreme Court Justice Antoni
Scalia and Clarence Thomas as there are allegations of that they have ties to conservative leaning

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organizations.
In the interest of full disclosure, the author has recently made contributions to candidates
for political office and organizations in helping candidates and advance issues in the political
arena. In addition the author has various connections to one of the two major political parties in
the United States ranging from the local level to the national level. The author feels that
acknowledging their political contributions and involvement is best in understanding why the
author chose this complex and lengthy topic and why the author displays strong feelings about
the Citizens United Case.
The opinion of this author is that the Supreme Court made the wrong decision. There are
claims that this was the worst decision made since Dredd Scott v. Sandford (1857) and Plessy v.
Ferguson (1896). For a sense of perspective, those cases dealt in the matter of Civil Rights and
whether it was right to deny certain groups of people their Civil Rights as defined in the United
States Constitution. To make that claim is alarmist and shows a loss of perspective.
As stated by President Barack Obama during his State of The Union Address in 2010, endless
amounts of money have entered into the political process without any way of knowing there
sources. In the 2012 Republican Presidential Primary, it was common for one of several
candidates to align themselves with a Super PAC. Former Georgia Congressman, Speaker of the
House, and Fox News Contributor Newt Gingrich had his Super PAC Winning Our Future which
was bankrolled with support by the casino magnate Sheldon Aldelson. Former Senator and
alleged homophobe Rick Santorum had a Super PAC backed by Foster Friess (pronounced
Freeze). The Santorum campaign had to disavow statements made by Friess in an interview
conducted by Andrea Mitchell of NBC News in which he said on the topic of contraception: On
this contraceptive thing, my Gosh its such inexpensive. You know, back in my days, they used

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Bayer aspirin for contraception. The gals put it between their knees, and it wasnt that costly.
Even though Texas Congressman Ron Paul of Texas claims that all his contributions are by
individuals, he is aligned with the libertarian based Super PAC Endorse Liberty.
Former Massachusetts Governor, former CEO of Bain Capital, and serial flip-flopper Mitt
Romney, who at this time is the presumptive party nominee due to his alleged sizeable lead in the
delegate count, has enough money according to his tax records released to bankroll his over
campaign. Romney is aligned with the Super PAC Restore Our Future. Even though the
incumbent President has stated his dislike of Super PAC, Barack Obama is aligned with Priorities
USA. Those are only the Presidential candidates, not the other influences on the political
processes. The one that quickly comes to mind is the Super PAC American Crossroads run by
former Bush-Cheney campaign strategist and Fox News Contributor Karl Rove. It gained
notoriety during the 2010 Congressional Elections as being one of the first Super PACs in the
Post-Citizens United Decision Era and was prominent in the dramatic swing of the House from
Democratic control to Republican controlled.
It almost sounds like we are headed towards a future where patches of political sponsorship
will be sown onto the suits of politicians similar to the patches and stickers seen on race car
drivers. On the topic of sports, it is worth mentioning that the Citizens United Decision repealed
what could be viewed as a salary cap in professional sport leagues. For example, the National
Football League (NFL) contains 32 teams. Every team cannot go over a certain salary limit. At
first, observers claimed that the salary cap would create parity across the league and destroy the
sport. While it has created parity, it has created a high amount of turnover between playoff and
non-playoff teams every season. Small-market teams, such as Green Bay, Jacksonville, and
Buffalo, can compete for the same players as the large-market teams such as the two New York

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franchises, New England, Dallas, and Chicago. The NFL is the popular sports league in this
country as proven by the last three Super Bowls have broken the 100 million viewer mark. If
somehow it was determined that the NFLs salary cap structure was unconstitutional, the league
would revert to a winner-take all status where the best players would go to the more attractive
markets and the small teams would struggle and might even have to consider relocation in order
to stay relevant.
In a way that is what has happened with the Citizens United Decision. If you have the
desire to run for public office in this country, you have to raise exorbitant amounts of money just
to get elected. If you happen to get elected, not only do you have to do your job as an elected
official, but you also have to raise money for the next election and the election for other people
as well. This falls into the never ending cycle of the permanent campaign, where all you do is
campaign for re-election and nothing else. As stated in Buckley v. Valero (1976):

The limits adopted by the State of Vermont are narrowly tailored to serve a compelling
government interest. Without spending limits, elected officials at all levels spend
inordinate amounts of time fundraising. The time spent fundraising undermines both the
performance of their core functions debating, voting, negotiating, and meeting with
constituents and the quality of campaigns. Protecting the integrity of both elected office
and of our system of representative democracy both in the performance of elected
officials and in the conduct of campaigns is an interest of the highest order, enshrined in
both the Constitution and this Courts jurisprudence. As such, protecting the time of
elected officials from the excessive demands of fundraising provides a compelling
government interest which supports campaign expenditure limits.

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The permanent campaign has done damage to the means of policy making and enacting
legislation that is needed for the citizens of this country. It has caused turnout levels to drop that
give advantage to one political party during certain elections and maintains the high level of
incumbency rates that exists today at all levels of government.
There are practical solutions to enact in order to restore our government. The first would
be practical legislation and both parties need to look at reforming their primary process. A
presidential election should not take place a full year prior to actual election. The other reform is
to improve donation disclosure rules. No one should have to wait a month in order to know who
donated to campaigns. A fully informed electorate is the best type there is.

Works Cited

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"Santa Clara County v. Southern Pacific R. Co. - 118 U.S. 394 (1886)." Justia US Supreme
Court Center. Web. 1 Apr. 2012.
<http://supreme.justia.com/cases/federal/us/118/394/case.html>.

"Theodore Roosevelt: Fifth Annual Message." The American Presidency Project. Web. 1 Apr.
2012. <http://www.presidency.ucsb.edu/ws/index.php?pid=29546>.

"Scholar's Highlight: Law Review Articles in the Eyes of the Justices Brent
Newton."Citizens United v. Federal Election Commission : SCOTUSblog. Web. 1 Apr. 2012.
<http://www.scotusblog.com/case-files/cases/citizens-united-v-federal-electioncommission/>.
"Connecticut Gen. Life Ins. Co. v. Johnson - 303 U.S. 77 (1938)." Justia US Supreme Court
Center. Web. 1 Apr. 2012. <http://supreme.justia.com/cases/federal/us/303/77/case.html>.

"BUCKLEY v. VALEO." Buckley v. Valeo. Web. 1 Apr. 2012. <http://www.oyez.org/cases/19701979/1975/1975_75_436>.

"Buckley v. Valeo." LII. 10 Nov. 1975. Web. 1 Apr. 2012.

<http://www.law.cornell.edu/supct/html/historics/USSC_CR_0424_0001_ZS.html>.

AP. "Adelson Makes Big Move." The Huffington Post. TheHuffingtonPost.com, 28 Feb. 2012.
Web. 1 Apr. 2012. <http://www.huffingtonpost.com/2012/02/28/sheldon-adelson-newtgingrich-super-pac-winning-our-future_n_1306247.html>.

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Rubin, Jennifer. "Meet Foster Friess, Rick Santorum%u2019s Super PAC Patron."Washington
Post. The Washington Post, 13 Feb. 2012. Web. 1 Apr. 2012.
<http://www.washingtonpost.com/blogs/right-turn/post/meet-foster-friess-rick-santorumssuper-pac-patron/2012/02/11/gIQAJgZO9Q_blog.html>.

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