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"Citizens United v. Federal Election Commission: The Court's Decision Poses A Threat To The Democratic Republic" by Sreyashe Dhar

Citizens United v. Federal Election Commission: The Court's Decision Poses A Threat To The Democratic Republic

by Sreyashe Dhar


"Experience hath shewn, that even under the best forms of government those entrusted with power have, in time, and by slow operations, perverted it into tyranny." Thomas Jefferson (1778) (quoted in Univ. of Chi., MAJOR THEMES, THE FOUNDERS' CONSTITUTION, CH 18 (Philip B. Kurland & Ralph Lerner ed., Liberty Fund 2000) (1950)).

Jefferson's fear underlies this critique of the Supreme Court's recent decision in Citizens United v. Federal Election Commission, 130 S. Ct. 876, 917 (2010), a decision which permits unlimited corporation funding of elections. In his first State of the Union Address, President Barack Obama directly criticized the ruling in Citizens United because it reverses a century of law by "open[ing] the floodgates for special interests - including foreign corporations - to spend without limit in our elections." See White House Press Release, President Barack Obama, Remarks in State of the Union Address, (Jan. 27, 2010), http://www.whitehouse.gov/the-press-office/remarks-president-state-union-address. The Court's ruling significantly reduces the opportunity for citizens to hold officeholders accountable to their duties. As a result, the Court's decision threatens to undermine the foundation of our nation's political system of governance.

This paper argues that the Citizens United decision is a backlash against modern legal history. The decision has altered the framework in which our citizens and officeholders function. This paper also presents relevant facts, issues and procedural history concerning Citizens United.The majority's rationale conflicts with the Framer's vision for our nation and the political philosophies on which they relied when constructing our government. The Court has discarded the laws and principles essential to our nation and with it the underpinning of our democratic republic.

Modern Legal History

Under the Federal Election Campaign Act of 1971, contributions to federal elections campaigns had to be made in limited amounts and had to be fully disclosed. KATHLEEN M. SULLIVAN & GERALD GUNTHER, CONSTITUTION LAW 1190(16th ed. 2007). However, corporations and unions, as well as individuals who had contributed the maximum amount to federal candidates, could contribute unlimited amounts of what is known as "soft money" to political parties for activities intended to influence state or local elections. Id. "Soft money" was being used for issue ads and was unregulated by Federal Election Committee. Id. The Bipartisan Campaign Reform Act of 2002, also known as the McCain - Feingold law, was a response to this. This law amended the Federal Election Campaign Act by imposing restrictions on soft money. Id. at 1191.

In Austin v. Michigan Chamber of Commerce, the Court held that the Michigan Campaign Finance Act, which prohibited corporations from using treasury money to support or oppose candidates in elections, did not violate the First Amendment. See 110 S. Ct. 1391, 1402 (1990). Furthermore, the Court held the anti-corruption rationale as being essential to democracy because it condemns corruption, or at least the appearance of it. Imposing limits might restrict candidates from spending excessive attention on fundraising, and instead focus on addressing issues. As a result, this may compel elected officials to address issues and direct attention to their constituents rather than special interest groups.

The Court further built on the rationale used in Austin when presented with another similar case, McConnell v. Federal Election Commission. 540 U.S. 93 (2003). Justice Stevens and O'Connor delivered the opinion of the Court. In the opinion, both Justices expressed fear that, "[O]fficeholders will decide issues not on the merits or the desires of the constituencies, but according to the wishes of those who made large financial contributions valued by the officeholder." See KATHLEEN M. SULLIVAN & GERALD GUNTHER, CONSTITUTION LAW1193 (16TH ED. 2007).This rationale is in accordance with the Founding Fathers' view that even good men may allow their ambition and greed to destroy government. The Court's rationale for denying the plaintiff's First Amendment challenge to Federal Election Campaign Act § 323(a) was that it believed the "[M]eans of prevention is to identify and remove the temptation." Id. at 1193. In doing so, the Court rejected an absolutist interpretation of the First Amendment.

The Court in Austin and McConnell. Federal Election Commission did not silence corporations, as the majority would like to claim. Instead, as the dissent rightly argues, corporations still continued to play a major role in the national dialogue. Furthermore, the Court has in several cases held that government can place restrictions on speech based on the identity of the speaker such as students, prisoners, members of the Armed Forces, foreigners and its own employees. Id. at 946. This does not pose a constitutional problem as long as those restrictions are justified by a legitimate governmental interest. Based on the majority's strict interpretation of the First Amendment, none of these restrictions on speech would be constitutional, yet the majority does not address this in its quest for absolute protection under the First Amendment.

Facts of the Case

At the time of the Court's ruling, Citizens United was a nonprofit corporation which had an annual budget of $12 million. Citizens United, 130 S. Ct. at 887. Although most of its funds consisted of donations from private individuals, it did receive funding from for profit corporations. Id. In December 2007 Citizens United brought its case to the District Court of Columbia, where it challenged the constitutionality of a ban on corporate expenditures for electioneering communications. Id. Electioneering communication is defined as "any broadcast, cable or satellite communication that refers to a clearly identifiable candidate for federal office and is made within 30 days of a primary or 60 days of a general election." Id. at 887.

In January 2008, Citizens United released a film about Hillary Clinton, who was at the time a candidate for the Democratic Party 2008 Presidential primary elections. Id. at 887. The 90 minute documentary, Hillary, included interviews with political commentators who were critical of the former senator. Id. at 887. Even though Citizens United had already released the documentary in theaters and on DVD, it wanted to increase distribution by making it available through video on demand within thirty days of the 2008 primary election. Id. This however would have violated § 441(b), which banned corporate funded independent expenditures. Id. As a result, Citizens United sought injunctive relief against the Federal Election Commission out of fear that if it carried out its plan it would be subjected to civil and criminal penalties for the ads and movie because both came under §441b.

The United States District Court for the District of Columbia held: 1) § 441b to be facially constitutional under McConnell and 2) § 441b to be constitutional as applied to Hillary. See Citizens United, 130 S. Ct. at 888. The District Court specifically made a point of illustrating that § 441b was constitutional with respect to Hillary because the documentary suggested that Senator Clinton was unfit for office, and therefore "the viewers should vote against her." Id. Additionally, the district court denied Citizens United's challenge to the Bipartisan Campaign Reform Act's disclaimer and disclosure requirements. Id. To support its argument, the court referred to the Supreme Court's approval of "disclosure provisions triggered by political speech even though the speech itself was constitutionally protected under the First Amendment." Id.

The case made its way to the Supreme Court on appeal of the district court's judgment.
In Citizens United, this Court overturned the anti-corruption rationale because it claimed the Court prior to Austin forbade restrictions on political speech based on the speaker's corporate identity. Citizens United, 130 S.Ct. at 903.

The Court evolves, and with it so does its jurisprudential philosophy. In Buckley v. Valeo, the Court upheld a federal law limiting campaign contributions but ruled spending money to influence elections is a form of constitutionally protected free speech. See 96 S. Ct. 612, 630 (1976). The Court also ruled candidates could give unlimited amounts of money to their own campaigns. Id. Unlike Buckley, the Court in Austin adopted an anti-distortion rationale, which is itself an anti-corruption rationale. By doing so, the Court took into consideration the government's interest in protecting officeholders from improper influences that may destabilize the democratic process. Id. at 970.

In the majority opinion, Justice Kennedy addressed both issues raised by the district court. First, Kennedy declared the decision in Austin to ban political speech based on the speaker's corporate identity be overruled. Second, Kennedy overruled the part in McConnell that upheld the Bipartisan Campaign Reform Act § 203's extension of § 441b's restrictions on corporate independent expenditures. See Citizens United, 130 S. Ct. at 913.

Though Chief Justice Roberts reached the same conclusion as Justice Kennedy, he wrote a concurring opinion, in which he was joined by Justice Alito. The Chief Justice defends the Court's decision to not adhere to stare decisis on grounds that this case presents an unusual circumstance in which adhering to precedent would do more damage to the constitutional principles than if the Court were to depart from precedent established in Austin. Id. at 921.

Justice Scalia also wrote a separate concurring opinion, in which he was joined by Justice Alito, and in part Justice Thomas. Scalia's primary contention was that the First Amendment protects speech and expression, including speech and expression by corporations. On the other hand, the dissent written by Justice Stevens centered on the majority's disregard for stare decisis, its interpretation of the Framers' intent, and its broad understanding of the scope of the First Amendment. Justices Ginsburg, Breyer and Sotomayor joined, concurring in part and dissenting in part.

Addressing The Underlying Flaw In The Majority's Arguments

The majority's argument, written by Justice Kennedy, is premised on the belief that the First Amendment enables ideas and thereby democracy to flourish but only if access to the market of ideas remains open to all, including corporations. Citizens United, 130 S.Ct. at 905. While on the surface this approach may appear reasonable, it is not. Instead, it is constraining because it presumes opening the market of ideas to corporations in an unrestricted manner will result in equalizing voices in the public sphere.

The majority overlooks the practicalities of this application. To begin with, society does not consist of participants who have equal access to speech and, therefore, power. Though we strive for equal opportunity, disparity does exist. Rather than equalizing the field, the principle of permitting corporations unrestricted access to speech has the reverse effect; the ordinary citizens' voice is diminished. Furthermore, for Justice Kennedy to claim the Framers understood freedom of speech to include corporate speakers is inconsistent with the Framers' political philosophy, the First Amendment, and American history.

Having been subjected to absolute power under King George III, the Framers witnessed the corruption that comes with power and as a result distrusted their role in government. This strong distrust of man and government influenced their decision to adopt Locke's separation of powers so that each branch had limited power. When the Constitutional Convention met in Philadelphia in 1787, it was for the purpose of revising the Articles of Confederation, under which the United States had been operating. See, e.g., Creating a Constitution,THE LIBRARY OF CONGRESS, available at http://memory.loc.gov/ammem/collections/continental/constit.html. James Madison, the principal author of the Constitution used the Constitution to create a federal government, which limited its powers to those enumerated in the Constitution. The idea was that natural rights are inherent in human beings and, therefore, pre-exist the artificial construct of a government.

In recognition of this, the Framers wrote the Bill of Rights with the purpose of explicitly restricting the power of those in government.The Bill of Rights accomplishes this by stating what the government cannot do to the people. This was intended to prevent the government, which may represent the views of the majority, from tyrannizing the minority. Ideally, the outcome results in protecting minority's rights.The First Amendment in particular accomplishes this by forbidding Congress from "abridging the freedom of speech, or of the press." U.S. CONST. amend. I (ratified 1791).

The dissent correctly uses this date to argue corporations were not perceived as a potential source of social good until after the 1800s. At the time, corporations were not an integral part of the American economy. When the First Amendment was ratified, there were less than 315 business charters. Citizens United, 130 S.Ct. at 949. Yet the Framers feared corporations would succeed in undermining the Republic. Id. To further support this claim, Justice Stevens refers to a letter written by Thomas Jefferson in which Jefferson wrote, "I hope we shall . . . crush in its birth the aristocracy of our monied corporations which dare already to challenge our government to a trial of strength and bid defiance to the laws of our country." Id. at 949.Jefferson's fear of the potential harm that corporate encroachment could produce is expressed in this line. Based on this letter, and the underlying principles that inspired the Framers when writing the Constitution, it is evident that the Framers did not intend to protect corporations' interests with regards to speech. Rather, the Framers neither wanted corporations to influence speech in government, nor conceived it possible for corporations to facilitate speech.

Contrary to the majority's view, the Framers would not have been pleased to see the Court include protecting corporations' rights to influencing public policy by buying speech. The Framers foresaw that possibility of those in power being bribed, and feared this would lead to the demise of the democratic republic.The Court's decision undermines the First Amendment in the Bill of Rights because it enables government to empower corporations to control speech. The criteria for what previously constituted the majority: race, gender, and political philosophy are overthrown. Now the "new majority" will be corporations, not individuals. These corporations will jeopardize the individual's right to speech by using their influence over government to dictate public discourse.

Though Justice Kennedy concedes the Framers may not have anticipated modern business and media corporations, he still leaps to the conclusion that the Framers intended to include "corporate speech" under the First Amendment. Id. at 906. Given the Framers could not foresee technology and corporations playing such an intricate role in society, they could not have conceived the concept of "corporate speech" because their understanding of freedom of speech was restricted to the individual. Id. at 951. We know the Framers viewed freedom of speech as a right reserved to the private individual because Jefferson drew inspiration from Locke's philosophy of natural law when writing the Declaration of Independence. Jefferson included the importance of the individual's rights when he wrote, "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness." The Declaration of Independence (adopted on July 4, 1776).

Nowhere in this document did Jefferson advocate to protect the liberty of business charters or joint stock companies, which were an early form of the modern day corporation. Like Locke, Jefferson understood life, liberty and the pursuit of happiness to pertain exclusively to the individual. While the Declaration of Independence is not law, it is still of significant value because it demonstrates the extent to which the founders were determined to hold on to their natural rights. In the Declaration of Independence, Jefferson declared independence on grounds that the colonists' natural rights were violated, and as such had to be protected. By doing so, he adopted Locke's view that when people's liberty is threatened, they have a right to revolt against the government in order to safeguard those natural rights. It is for this reason the document explicitly defines the individual rights of colonists in opposition to the rights denied to them under the tyranny of King George III.

The Framers' desire to protect speech stemmed from the lessons they derived from the demise of republics; bribery and corruption erodes law and in the process destroys empires. While the colonists initially viewed the English Constitution as "the best model of Government that can be framed by Mortals" by 1775 this opinion changed. See GORDON S. WOOD., THE CREATION OF THE AMERICAN REPUBLIC, 1776-1787, at 33(1998). Americans witnessed the undermining of the English constitution through bribery and corruption. And because of this the framers adopted a representational system in which prohibitions were placed on representatives, thereby curtailing corruption and bribery. The majority's reasoning is a significant departure from the historical conditions and philosophical principles that inspired the framers to write the First Amendment.

Rejecting The Majority's Absolute Interpretation of the First Amendment

In his concurring opinion, Justice Scalia expresses an absolute interpretation of the First Amendment. Scalia argues if speech is prohibited on the basis government fears it will lead to moral decay, there will be no end to government censorship. Additionally, Scalia makes the case that the press is a corporation, yet its rights are still protected under the First Amendment. While Scalia's interpretation of the First Amendment seems straightforward on the surface, its application is disastrous. First, media corporations serve a distinct purpose, which is to collect information and make it available to the public. If the rights of the press to report are subverted, then the form of government we have is no longer democratic. Antithetical to the majority's view, the identity of the speaker is relevant because unlike people, corporations cannot vote, or run for office, yet they have access to financial resources and legal structure, which the ordinary citizen does not have. Citizens United, 130 S.Ct. at 930 (2010).

Even though the Court's interpretation of the First Amendment has tended to look unfavorably on identity based distinction because it reflects preferential treatment or discrimination, the Court has not prohibited all legislative distinctions based on identity. Id. at 946. The dissent points out that the Court previously allowed the legislature to determine the characteristics of a corporate structure that need to be taken into account, especially with regards to regulation in the electoral context. Id.

This raises concern about the role of corporations in the electoral process. Since corporations have the ability to use money to influence politicians to vote a particular way, voices of corporations are enhanced over the voices of the individual speaker. We participate in a globalized economy, in which there are multinational companies. This poses a predicament: Do we afford speech controlled by foreign entities equivalent to that of individual Americans? "We the people" does not include corporations, and certainly not those that are foreign. Sovereignty does not lie in corporations, or the government, but in the people. The implications of granting corporations unlimited power is grave. The Court has essentially given corporations access to influencing American law, the foundation which governs our society.

Corporations are guided by monetary self-interest, and if they succeed in exploiting those in government to create laws that favor them in exchange for money,officeholders will no longer serve the interests of the individual. It is likely corporations will succeed not necessarily because their skills of persuasion are greater than the individual's--but rather because, as the Framers understood, man is easily corrupted by greed. This is why the Bill of Rights is crucial to protecting not only the individuals' rights but also those in government from themselves. The Court's decision has enabled those in power to succumb to their worse nature. Once people believe laws are being bought, cynicism will lead to a decline in people participating in the democratic process. Unregulated corporate electioneering will continue to diminish the ability of the people to hold officeholders accountable. This will lead to the materialization of what the founding father's feared most; corruption and instability undermining the effectiveness of the democratic republic.


The Supreme Court's recent decision to revert back to the standard in Buckley poses a substantial threat to our democratic process. We must reject the blanket principle the majority has relied on. The notion that government should never attempt to regulate political discourse because it violates democracy is not an absolute. Instead, we should hold on to what we know to be truly democratic; the individual's right to speech. The majority has misunderstood not only what free speech entails but what it means for a free people to self-govern. Had the majority understood what is truly democratic, they would not have permitted corporations to buy speech.

Political writer Ronald Dworkin argues when wealth is unfairly distributed in society, the individual's vote diminishes in power. Ronald Dworkin, Essay, The Curse of American Politics, NEW YORK BOOK REVIEW.,vol 43, no. 16.The Court's decision in Citizens Unitedhas altered the relationship between citizens and their representatives. It has reduced the voice of every American citizen. We are now competing against multi-billion dollar companies, and their unlimited resources. The Court's decision has profound implications on public discourse. Even though we may be equal as individual citizens in terms of our ability to vote and freedom to hear candidates speak, now more than previously money dominates politics. Ideas, issues and solutions to problems addressed are being framed by corporations who are influencing campaign ideas because they have money, which buys them power.

This is entering dangerous territory because we are competing with corporations who have more to offer political candidates than we do: money in exchange for power. As a result, some elected office holders may be corrupted because they do not have to take into account their duty to us. The possibility that corporations may be able to guarantee candidates re-election resembles a form of absolute power, which is ironically what the founding fathers revolted against. This Court has not only misinterpreted the First Amendment, but it has entirely discarded the founding principles embedded in the Constitution. Until and unless the Court realizes its error and is presented with an opportunity to reverse this decision, our government--or at least the way we are able to select our leaders in it-- will move away from the democratic principles on which it was founded.

Sreyashe Dhar is a first- year law student at Syracuse University College of Law where she volunteers her time doing pro bono work for the Cold Case Justice Initiative.Additionally, Sreyashe plays intermural flag football, and enjoys running regularly. Sreyashe is particularly interested in pursuing trial law.

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This page contains a single entry from the blog posted on November 23, 2011 6:56 PM.

The previous post in this blog was "Behind The Walls And Barbed Wire: The Attica Uprising And Lessons Not Learned" by Benjamin Pomerance.

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