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Citizens United: The Organization

The case that came to symbolize undue corporate influence on political campaigns actually had nothing at all to do with business or for-profit corporations. Indeed, there was not a business corporation in sight, except perhaps for a friend of the Court brief filed by the US Chamber of Commerce. Rather, Citizens United is a small, conservative nonprofit organization that has been active on that side of the aisle for about thirty years putting out the conservative message on government, politics, and politicians. It is much smaller, younger, and, until the Supreme Court ruling in its favor, far less well known than the American Civil Liberties Union (ACLU), National Association for the Advancement of other Colored People (NAACP), Sierra Club, and National Rifle Association (NRA), let alone the thousands of other cause organizations that help constitute our nation’s political life. And, like most such organizations, it is a corpora- tion—a nonprofit corporation, not a business corporation—but a corporation nonetheless. And there was the constitutional rub.

What Citizens United intended to do was prepare a movie harshly critical of then-New York Senator Hillary Clinton who was actively seeking the presidency of the United States in 2008. Citizens United, or rather its leaders, thought she was extremely unqualified for the j ob and would be a danger to the Republic if she got it. Perhaps channeling Michael Moore, the left-wing film entrepreneur whose movie Fahrenheit 911 was a powerful attack on President George W. Bush shown in movie theaters across the country during the 2004 elections, Citizens United thought an anti-Clinton documentary would be an effective way to communicate its message. The resulting film, Hillary: The Movie, was intended for release through on-demand cable television, through DVDs, and in movie theaters. Citizens United also planned to advertise the film on television. It would be released at the beginning of 2008, a presidential election year, just as the public’s attention would be focusing on such issues.[1] The problem was that such conduct was expressly prohibited by federal law.

It might be a surprise, in a country with a First Amendment, that there would be any problem with an organization producing and circulating a movie like this critical of a candidate for the highest office in the land. Indeed, one might have thought that the whole point of having a First Amendment was precisely to let “We the People,” individually or through the various entities and organizations we form, produce and disseminate political messages. Yet under the existing campaign finance law regime nearly every dollar spent to advocate, support, or oppose the election of political candidates is subject to various forms of government regulation, ranging from disclosure and reporting requirements to hard limits and outright prohibitions.

So, Hillary: The Movie and Citizens United became ensnared in the warp of our federal campaign finance laws and restrictions, flowing from the Federal Election Campaign Act, the Bi-Partisan Campaign Reform Act, and the Federal Election Commission (FEC), whose thousands of pages of rules and regulations are in place to enforce those provisions.[2] The major problem for Citizens United was that it was organized as a corporation. And the pertinent federal election campaign law provisions made it a felony for any corporation—not just Exxon, but Acme Paints or any of the hundreds of thousands of nonprofit cause organizations in America—to speak about politicians during much of an election year.[3] Criticism of Hillary Clinton was, in the government’s eyes, indistinguishable from speech opposing her election. As if that were not enough, labor unions— all labor unions—were prohibited from engaging in such speech as well. And to make matters even worse, when the case was argued in the Supreme Court, the government’s position was that the ban on corporate speech about politicians would justify punishing a book publisher for producing and distributing a book entitled, Hillary: The Book with even one sentence advocating her defeat as a candidate, or perhaps a series of pamphlets with the same message.[4]

The facts of the case gave the Court a dramatic example of the practical and legal ramifications of efforts to control the funding and dissemination of political messages. Indeed, the very complexities of the campaign finance laws— operating at the core of the First Amendment—would help prove their undoing. So, Citizens United took the FEC to court to try to establish its right to distribute and advertise its film. It would lead to a 5 to 4 landmark Supreme Court First Amendment ruling written by Justice Anthony M. Kennedy, one of the Court’s leading free speech advocates and pivotal justice.

  • [1] Citizens United, 130 S. Ct. at 887.
  • [2] Until recently, the key provisions of the Federal Election Campaign Act of 1971, as amended,were set forth at 2 U.S.C. sections 431-57 and included provisions of the Bipartisan CampaignReform Act of 2002. In September 2014, those provisions were moved to a new U.S. Code Title,Title 52, Voting and Elections, and are now contained in Sections 30101 to 30146. References in thischapter are to the former statutory sections. The regulations of the FEC are set forth at Title 11 of theCode of Federal Regulations.
  • [3] 2 U.S.C. Section 441b. As the Supreme Court put it at the start of its opinion in CitizensUnited: "Federal law prohibits corporations and unions from using their general treasury funds tomake independent expenditures for speech defined as an 'electioneering communication’ or forspeech expressly advocating the election or defeat of a candidate.” 130 S. Ct. at 886.
  • [4] See Transcript of Oral Argument, Citizens United v. FEC, No, 08-205, March 24, 2009,pp. 26-29; September 9, 2009, pp. 65-67.
 
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