What is “Citizens United,” and Why is it a Problem?

During the 2016 election campaigns, the words “Citizens United” were brought up often, particularly by Senator Bernie Sanders. Those words represent the controversial Supreme Court decision on the case Citizens United v. FEC. 

Background:

In 2002, the Bipartisan Campaign Reform Act, sponsored by Senators John McCain (R-AZ) and Russ Feingold (D-WI), was created to curb big (or soft) money in politics. The BCRA, also known as the McCain-Feingold Act, placed limits on the indirect campaign contributions (like political commercials) that could be made by interest groups, corporations, etc. In essence, the law limited the influence that money could have on politicians and restricted the power of the very wealthy in regard to elections.

Leading up to the 2004 election, progressive filmmaker Michael Moore advertised and released his documentary Fahrenheit 9/11. The film was critical of President George W. Bush. Because the film’s release was so close to the election, the conservative non-profit Citizens United tried to suppress the film on the basis that it was in violation of the McCain-Feingold Act. However, the Federal Election Commission (FEC) ruled in favor of Moore, noting that the film and its promotion represented legitimate commercial activity. (Although the film actually had been advertised and released by the time the ruling was given.)

In 2008, now knowing that film was protected by the Federal Election Commission, Citizens United tried to air a film called Hillary: The Movie. The documentary on Hillary Clinton, who was running against Senator Barack Obama in the Democratic Primaries, was produced solely to criticize her. The United States District Court ruled against Citizens United on the basis that the film violated McCain-Feingold because its purpose was only to undermine a political candidate. In response, Citizens United brought the case to the Supreme Court.

The Ruling:

The question that the Supreme Court needed to answer was whether or not McCain-Feingold’s restrictions on campaign finance violated the First Amendment right of free speech. The way I see it, the question was answered in two parts. The first issue was whether or not spending/donating money is a form of free speech. The second was whether or not corporations/special interests are protected under the First Amendment.

Ultimately, in 2010, the Supreme Court answered the question in a 5-4 decision favoring Citizens United. The majority opinion, written by Justice Anthony Kennedy, ruled that McCain-Feingold’s restrictions on independent campaign expenditures were unconstitutional. Kennedy was joined by Antonin Scalia, John Roberts, Samuel Alito and Clarence Thomas. They contended that restrictions on corporations and unions to spend money independently of political campaigns violated the First Amendment. So, spending money is considered a form of free speech and corporations/special interests are protected under the First Amendment.

John Stevens wrote the dissenting opinion, which was joined by Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor.

For a more detailed overview of the decision, go here.

Effects of Citizens United v. FEC:

For the sake of transparency, it is my opinion that the Supreme Court’s ruling has been a disaster in American politics. Keep in mind, the “B” in BCRA stood for “Bipartisan.” McCain-Feingold was a rare bipartisan achievement where both Democrats and Republicans were satisfied. While many of the law’s vital provisions are still in effect, its range has been decreased significantly.

Now, corporations have free reign to fund super PACs that spend hundreds of millions of dollars to support political candidates and parties. Such a money-rich environment is perfect for the establishment of a quid pro quo (trade-off) system in which the wealthy few (who already possess massive economic power) influence many of our elected representatives to act against the interests of their constituents and country.

The public opinion on the Supreme Court’s decision in Citizens United v. FEC supports my argument well. In 2010, a Washington Post-ABC poll showed that 8 in 10 people opposed the decision. That number included 85% of Democrats, 76% of Republicans, and 81% of Independents. A Gallup poll showed that 76% of Americans thought there should be limitations on the amount of money that corporations and unions can contribute.

Overturning Citizens United v. FEC remains a prominent talking point in many political circles. The Democratic Party actually has the reversal of Citizens United v. FEC as a major part of its platform. Many Republicans condemn the decision as well. Even Donald Trump has criticized the decision in the past.

The decision made in Citizens United v. FEC was an ironic misstep by the Supreme Court. In an attempt to protect free speech, the Supreme Court actually undermined the weight of the people’s free speech.  Now, they need to do their best to win back the faith of the American people. Considering the recent news surrounding John McCain, it would be a step in the right direction if his attempt to protect our democracy was honored.

 

Sources: MSNBC, CBS News, HillaryClinton.com, BernieSanders.com, The Washington Post, OpenCongress.org Archives, Oyez.org Archives, Gallup

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