We Need to Talk About Citizens United

By: Molly Cunningham

Applying for the position of the Blog Editor of the University of Chicago Undergraduate Law Review, I was asked the intriguing question: “What is your favorite Supreme Court case?”

I must admit my favorite case is the landmark Brady v. Maryland (1963), an important case ensuring the rights of defendants during criminal trials. Despite this personal choice, I cannot deny the power of the more recent 2010 case, Citizens United vs. Federal Election Commission.

In the past two years, no other Supreme Court case has dominated the national political debate like Citizens United. According to a 2010 ABC-Washington Post poll, eighty percent (80%) of Americans opposed the ruling. Politicians from both sides have objected to its passage. President Obama chastised the Supreme Court justices for the majority opinion on Citizens United in his 2010 State of the Union address to Congress. His former opponent, the 2008 Republican presidential nominee Senator John McCain described the ruling as “one of the worst decisions I have ever seen.”

Despite the outrage and disgust over the majority opinion of this case, many Americans still question it and its details. What is Citizens United v. FEC?

As in previous years, the election of 2008 was an immensely ugly campaign. The campaigns were aided in a dirty war by the rise of a new breed of political surrogate –tax-exempt 501(c)(3) non-profits. These organizations acted outside the auspices of the Republican and Democratic campaigns, producing attack ads and raising funds. The presidential election was the first election where these fledgling political non-profits came into conflict with a 2002 Bipartisan Campaign [Finance] Reform Act, nicknamed the McCain-Feingold Act.

Citizens United is a conservative non-profit of this new political nonprofit mold, "assert[ing] American values of limited government, freedom of enterprise, strong families, and national sovereignty and security."

Citizens United achieves its goal of advancing values and freedom through campaigning for conservative Republican candidates. The non-profit also creates, publishes, and distributes materials critical of Democratic candidates. In 2008, Citizens United intended to release a documentary film about presidential candidate Hilary Clinton, Hilary: The Movie.

The McCain-Feingold Act prohibits corporate non-profits from showing “electioneering communications” before certain primary and general election dates. The United States District Court of District Columbia forbade Citizens United from showing HilaryThe Movie because it was scheduled to open 30 days before a state primary. Citizens United appealed the lower court ruling to the Supreme Court, arguing an infringement of its First Amendment Rights. The Supreme Court docketed the case of Citizen United v. The Federal Election Commission on August 18, 2009 and first heard arguments in 2009.

The primary argument within Citizens United involves whether or not corporations and unions can spend money for political purposes. Citizens United argued the limitations placed by the McCain-Feingold Act and enforced by the FEC were an unconstitutional gag on freedom of speech. The government, represented by the FEC, argued campaign finance laws represented a valid regulation of business. The Supreme Court ruled in favor of Citizens United with a five-justice majority.

How exactly does Citizens United v. FEC affect American society?

Most immediately, it froze crucial aspects of the McCain-Feingold Campaign Reform Act in favor of deregulation of corporate campaign spending. The decision removed regulation on corporate institutions donating to specific political non-profits. Before Citizens United, the only corporations allowed to make what the McCain-Feingold Act called “electioneering communications” were media organizations.  After Citizens United, large and small organizations gained the ability to create, distribute, and promote materials like Hilary: The Movie at any time. Furthermore, the funding restrictions on campaign donations from corporations to candidate Super-PACs no longer applied.

Why is this case so controversial?

The phrase most often associated with the majority ruling is the concept that “corporations are people, too”.

This phrase equates the free speech rights of individuals to organizations like Citizens United. The case draws controversy because the majority opinion relaxes and removes regulations on all non-profit corporate and union political advocates, regardless of the political leaning. Suddenly, it is the political non-profit with power over the individual.

There is, however, an unsettling and often unspoken question. Is there merit to the majority opinion authored by five justices of the Supreme Court?

The disapproval with the concept, “corporations are people” is evident from opinion polls and editorials. The likes of Jon Stewart and Stephen Colbert have lampooned and mocked the justices and the political non-profits who have benefited from the ruling. The only supporters of the ruling appear to be the growing market of conservative non-profits.

It is my opinion that the ruling is not valid. Corporations, with seemingly endless reserves of cash and support, hardly resemble the average American citizen. If the rules have created a new method of political donation, then why should only conservative groups benefit?  So far, the conservative political non-profits have benefited from the rulings in this Republican primary season. Come the general election in November, why shouldn’t Democratic and Independent efforts benefit in the same manner?

I wonder how Citizen United will react to socialists, liberals, moderates, conservatives, and libertarians playing its game. In the short-term, new groups should oppose Citizens United and demonstrate the full extent of the new world order of campaign finance. The Supreme Court is capable of gradual change, so perhaps the dissenting public can prompt change by demonstrating the flaws within this new unregulated system. If Citizens United wishes to play fast and loose with the Constitution, then I suggest that the pragmatic player within politics joins this new game.

This moderate isn’t about to see the game of the 2012 election be won -- lock, stock, and barrel -- by one side alone. Let’s have the competitive election that Citizens United supporters desire, and let’s see how long the ruling stays in place.

Molly Cunningham is the Blog Editor for the Undergraduate Law Review, and is a third year in the College.