Citizens United v. FEC

1. Citizens United v. FEC 130 S.Ct 876 (2010)

2. Citizens United overruled, in whole or in part, two of the Court‘s own precedents – Austin v. Michigan Chamber of Commerce (1990) and McConnell v. Federal Election Commission (2003) – and struck down a significant portion of the Bipartisan Campaign Reform Act of 2002 (BCRA) (also known as ―McCain-Feingold). • It called into question dozens of state laws, which will now have to be repealed or amended to comply with the decision. Dramatic Impact

3. Prior to Citizens United, a corporation that wished to support or oppose a federal candidate had to do so using PAC funds – funds amassed through voluntary contributions from individual employees and shareholders who wished to support the corporation‘s political agenda. Such funds were subject to federal contribution limits and other regulations Corporate electioneering before Citizens United

4. Citizens United decision will allow corporations that wish to directly influence the outcome of federal elections to draw from their general treasury funds, rather than PAC funds, to support or oppose a particular candidate Corporate electioneering after Citizens United

5. In the 2008 election cycle, the nation‘s largest corporation, Exxon-Mobil, formed a PAC that collected approximately $700,000 in individual contributions. Thus, Exxon-Mobil was limited to spending this amount on advertisements directly supporting or opposing a federal candidate. • During the same 2008 election cycle, Exxon-Mobil‘s corporate profits totaled more than $80 billion. Citizens United frees this one corporation to increase its direct spending in support or opposition to federal candidates by more than 100,000 fold. • During the 2008 election cycle, all winning congressional candidates spent a total of $861 million on their campaigns – less than one percent of Exxon-Mobil‘s corporate profits over the same period. • Down ballot effects Huge Sums of Corporate Money Now available in Elections

6. The censorship we now confront is vast in its reach. The Government has ―muffle[d] the voices that best represent the most significant segments of the economy.‖ And ―the electorate [has been] deprived of information, knowledge and opinion vital to its function.‖ • By suppressing the speech of manifold corporations, both for-profit and nonprofit, the Government prevents their voices and viewpoints from reaching the public and advising voters on which persons or entities are hostile to their interests. From Justice Kennedy’s Majority decision

7. 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. From Justice Stevens’ dissent:

8. Stare decisis is a “principle of policy.” When considering whether to reexamine a prior erroneous holding, we must balance the importance of having constitutional questions decided against the importance of having them decided right. Justice Roberts (concurring)

9. The Court’s central argument for why stare decisis ought to be trumped is that it does not like Austin. • In the end, the Court’s rejection of Austin and McConnell comes down to nothing more than its disagreement with their results. Virtually every one of its arguments was made and rejected in those cases, and the majority opinion is essentially an amalgamation of resuscitated dissents. The only relevant thing that has changed since Austin and McConnell is the composition of this Court. Today’s ruling thus strikes at the vitals of stare decisis. Justice Stevens (dissent)

10. The Court’s central argument for why stare decisis ought to be trumped is that it does not like Austin. • In the end, the Court’s rejection of Austin and McConnell comes down to nothing more than its disagreement with their results. Virtually every one of its arguments was made and rejected in those cases, and the majority opinion is essentially an amalgamation of resuscitated dissents. The only relevant thing that has changed since Austin and McConnell is the composition of this Court. Today’s ruling thus strikes at the vitals of stare decisis. Justice Stevens (dissent)

11. money = speech • corporations = people • elections = marketplace 3 Principles in Citizens United

12. DISCLOSE ACT (Van Hollen, D-MD) HR5175, (Schumer, D-NY) went to Rules June 22, 2010 • Requires major backers to appear and announce they sponsored the ad. The top five organizations that donate to the ad must also be disclosed. • But NRA. Congressional Response

13. McComish v. Bennett (Arizona’s Public Financing Scheme) • On May 24, 2010 plaintiffs petitioned the Supreme Court to vacate the appellate stay by May 28th in order to block the distribution of matching funds to candidates participating in the state's public financing system in 2010. On June 8, 2010 the Supreme Court granted plaintiffs' petition pending the Court's certiorari decision. In doing so, the Court blocked the distribution of any subsidies to any CCEA candidates. • It is unlikely that the Court issued the Order just to deny cert and affirm the 9th Circuit. It is far more likely that certiorari will be granted the CCEA overruled. Public Financing Schemes Next to be Overruled

14. Soft Money – money collected by national political parties not subject to direct candidate limits – has been challenged as unconstitutional, RNC v. FEC. • Ban Upheld by 3 Judge Panel in DC Circuit • Cert. determination pending. Ban on Soft Money Next?