Citizens United v. FEC

Citizens United v. FEC Justin Shlensky Courtney Sommer

Citizens United: the corporation Who they are: conservative org "dedicated to restoring our government to citizens' control." Webpage has many references to Ronald Reagan and a new video, "Occupy Unmasked." Issue here: Hillary CU's argument: BCRA didn't apply to DVDs and on-demand videos and the BCRA limited CU's First Amend. free speech rights.

Hillary (the "documentary") https://www.youtube.com/watch?v=BOYcM1z5fTs

Quotes from CU Interview "After Wisconsin Right to Life I & II, it was clear to the justices that the limitations in place weren't working and were hard to apply. The court realized by Citizens United that the only viable option was to reconsider the entire framework of political speech." "It was a great victory for Citizens United because it continued participating in political speech which it couldn't do until this case."

Class Vote #1 Was Hillary political or not? Should it have been subject to BCRA regulations? Is there any reason why it should be treated differently than other political communications?

Citizens United's claims at district court level Challenged whether it was a 'communication' under the BCRA. Argued that DVD and on-demand videos were not a "communication" within the bounds of the BCRA. Also opposed the disclosure and disclaimer requirements. Dropped facial challenge; no mention of Austin.

District Court's decision Denied CU's preliminary injunction regarding the challenge to the BCRA. Explained that the requirements applied to CU and "enforcement of the BCRA provisions at issue would serve the public interest in view of the Supreme Court’s determination that the provisions assist the public in making informed decisions, limit the coercive effect of corporate speech, and assist the FEC in enforcing contribution limits." District Court decided on July 18, 2008, after the primary election, which CU wanted to impact with its video.

Class Vote #2 Did the District Court get it right on the claims that it heard?

Austin Facts: Michigan state law restricted corporate independent expenditures unless the money came from a separate political fund. Michigan Chamber of Commerce had a segregated political fund but wanted to use money from its general treasury fund for a political advertisement. Held: Political speech can be banned based on the speaker's corporate identity, bypassing Buckley and Bellotti. Upheld Michigan's law. Government interest: Preventing "corrosive and distorting effects of immense aggregations of [corporate] wealth...that have little or no correlation to the public's support for the corporation's political ideas." (Antidistortion rationale)

The Supreme Court and Austin Mr. Tayrani said it was difficult to ask the Supreme Court to overturn its own decision, especially after McConnell and because the Chief Justice and Justice Alito were reluctant to overturn prior precedents, so they initially argued for a narrow result. They wanted to distinguish the precedents but the Court signaled it wanted to reconsider Austin. On June 29, 2009, the Court asks both parties to file supplemental briefs regarding: “Whether, for the proper disposition of this case, the Court should overrule either or both Austin v. Michigan State Chamber of Commerce, 494 U.S. 652 (1990), and the part of McConnell v. FEC, 540 U.S. 93 (2003), which addresses the facial validity of Section 203 of the Bipartisan Campaign Reform Act of 2002.”

Justice Stevens' Dissent "[E]ssentially, five Justices were unhappy with the limited nature of [Austin], so they changed the case to give themselves an opportunity to change the law.” Because Citizens United’s original claim implied Austin, and therefore §441b, were invalid, the Court assumed an obligation to make a broader decision on the issue than what Citizens United requested. The statutes upheld in Austin did not impose an ‘absolute’ ban on corporate political spending. Austin’s treatment of corporate speakers was not incorrect because “[c]ampaign finance distinctions based on corporate identity tend to be less worrisome . . . because the ‘speakers’ are not natural persons, much less members of our political community, and the governmental interests are of the highest order.” Corporations and unions, under the BCRA, were barred from using funds from their general treasury for express advocacy or electioneering communications, but they could establish a “‘separate segregated fund,’” or PAC, for such purposes.

Timeline of claims • March 2009 - Citizens United won a narrow victory when the Court said McCain-Feingold didn't apply to DVDs and on-Demand videos. • June 2009 - Citizens United expected a decision from the Court, but instead were asked to submit a new brief that included a request of overturn Austin and strike down all federal and state restrictions • September 2009 - Oral arguments on new briefs • January 2010 - final decision from Court

Class Vote #3 Was the Supreme Court's reintroduction of Austin a practice of judicial activism? Can you think of another recent case where the Supreme Court has asked parties to file supplemental briefs on an issue that it did not originally grant cert. on?

Judicial Activism The Court did not perform judicial activism here because, "judicial activism is when a justice thinks that he or she is smarter than the Constitution and says that the Constitution says something else than what it actually says." -Peter Ferrara, General Counsel for The American Civil Rights Union (ACRU) Prof. Matthew Stanton Yes, it's judicial activism, but it's also political activism. There is a great political struggle here - political aiming justices that favor a political agenda "bold-faced" judicial activism

Citizens United at Supreme Court Kennedy's majority Cannot discriminate based upon corporate identity - it violates free speech principles Individuals will not fall victim to corporate influence Stevens' dissent Austin's antidistortion rationale is properly in place to prevent actual, or the appearance of, corruption With Austin, there are still avenues for corporate political speech

Class Vote #4 Did any of the opinions get everything right? How would you have ruled on the multiple claims?

Citizens United, part 2? The flipside to CU - McCutcheon McCutcheon, an extremely wealthy individual and frequent conservative org and candidate contributor, along with the RNC, challenged FECA's aggregate contribution limits (individuals cannot donate unlimited amounts of money per election cycle). Plaintiffs argue that the limits should be subject to strict scrutiny because they are essentially actually expenditure limits. The district court disagreed; "Contribution limits are subject to lower scrutiny because they primarily implicate the First Amendment rights of association, not expression, and contributors remain able to vindicate their associational interests in other ways...the aggregate limits do not regulate money injected directly into the nation's political discourse; the regulated money goes into a pool from which another entity draws to fund its advocacy" District Court argued that Buckley's rationale of preventing corruption and the appearance of corruption justifies the government's aggregate limits.

McCutcheon Where McCutcheon currently is - going to be heard this term, but don’t know when http://www.scotusblog.com/case-files/cases/mccutcheon-v-federal-election-commission/

CLASS VOTE # 5 You're on the bench. How would you rule on McCutcheon? Would you overturn Buckley as it pertains to limits on aggregate contributions? Why or why not?

Citizens United v. FEC