CITIZENS UNITED v. FEDERAL ELECTION
Decided January 21, 2010
Justice Kennedy delivered the opinion of the Court.
Federal law prohibits corporations and unions from using their general treasury funds to make independent expenditures for speech defined as an "electioneering communication" or for speech expressly advocating the election or defeat of a candidate. 2 U. S. C. §441b. Limits on electioneering communications were upheld in McConnell v. Federal Election Comm'n, 540 U. S. 93, 203-209 (2003). The holding of McConnell rested to a large extent on an earlier case, Austin v. Michigan Chamber of Commerce, 494 U. S. 652 (1990). Austin had held that political speech may be banned based on the speaker's corporate identity.
In this case we are asked to reconsider Austin and, in effect, McConnell. It has been noted that "Austin was a significant departure from ancient First Amendment principles." We agree with that conclusion and hold that stare decisis does not compel the continued acceptance of Austin. The Government may regulate corporate political speech through disclaimer and disclosure requirements, but it may not suppress that speech altogether. We turn to the case now before us.
Citizens United is a nonprofit corporation....Citizens United has an annual budget of about $12 million. Most of its funds are from donations by individuals; but, in addition, it accepts a small portion of its funds from for-profit corporations.
In January 2008, Citizens United released a film entitled Hillary: The Movie. We refer to the film as Hillary. It is a 90-minute documentary about then-Senator Hillary Clinton, who was a candidate in the Democratic Party's 2008 Presidential primary elections. Hillary mentions Senator Clinton by name and depicts interviews with political commentators and other persons, most of them quite critical of Senator Clinton. Hillary was released in theaters and on DVD, but Citizens United wanted to increase distribution by making it available through video-on-demand.
Video-on-demand allows digital cable subscribers to select programming from various menus, including movies, television shows, sports, news, and music. The viewer can watch the program at any time and can elect to rewind or pause the program. In December 2007, a cable company offered, for a payment of $1.2 million, to make Hillary available on a video-on-demand channel called "Elections '08." Some video-on-demand services require viewers to pay a small fee to view a selected program, but here the proposal was to make Hillary available to viewers free of charge.
To implement the proposal, Citizens United was prepared to pay for the video-on-demand; and to promote the film, it produced two 10-second ads and one 30-second ad for Hillary. Each ad includes a short (and, in our view, pejorative) statement about Senator Clinton, followed by the name of the movie and the movie's Website address. Citizens United desired to promote the video-on-demand offering by running advertisements on broadcast and cable television.
Before the Bipartisan Campaign Reform Act of 2002 (BCRA), federal law prohibited--and still does prohibit--corporations and unions from using general treasury funds to make direct contributions to candidates or independent expenditures that expressly advocate the election or defeat of a candidate, through any form of media, in connection with certain qualified federal elections. BCRA §203 amended §441b to prohibit any "electioneering communication" as well. An electioneering communication is defined as "any broadcast, cable, or satellite communication" that "refers to a clearly identified candidate for Federal office" and is made within 30 days of a primary or 60 days of a general election. The Federal Election Commission's (FEC) regulations further define an electioneering communication as a communication that is "publicly distributed." "In the case of a candidate for nomination for President ... publicly distributed means" that the communication "[c]an be received by 50,000 or more persons in a State where a primary election . . . is being held within 30 days." Corporations and unions are barred from using their general treasury funds for express advocacy or electioneering communications. They may establish, however, a "separate segregated fund" (known as a political action committee, or PAC) for these purposes. The moneys received by the segregated fund are limited to donations from stockholders and employees of the corporation or, in the case of unions, members of the union.
Citizens United wanted to make Hillary available through video-on-demand within 30 days of the 2008 primary elections. It feared, however, that both the film and the ads would be covered by §441b's ban on corporate-funded independent expenditures, thus subjecting the corporation to civil and criminal penalties under §437g. In December 2007, Citizens United sought declaratory and injunctive relief against the FEC. It argued that (1) §441b is unconstitutional as applied to Hillary; and (2) BCRA's disclaimer and disclosure requirements, BCRA §§201 and 311, are unconstitutional as applied to Hillary and to the three ads for the movie....
As the foregoing analysis confirms, the Court cannot resolve this case on a narrower ground without chilling political speech, speech that is central to the meaning and purpose of the First Amendment....For these reasons we find it necessary to reconsider Austin....
The First Amendment provides
"Congress shall make no law ...
abridging the freedom of speech." Laws enacted to control or suppress
speech may operate at different points in the speech process....
The law before us is an outright ban, backed by criminal sanctions. Section 441b makes it a felony for all corporations--including nonprofit advocacy corporations--either to expressly advocate the election or defeat of candidates or to broadcast electioneering communications within 30 days of a primary election and 60 days of a general election. Thus, the following acts would all be felonies under §441b: The Sierra Club runs an ad, within the crucial phase of 60 days before the general election, that exhorts the public to disapprove of a Congressman who favors logging in national forests; the National Rifle Association publishes a book urging the public to vote for the challenger because the incumbent U. S. Senator supports a handgun ban; and the American Civil Liberties Union creates a Web site telling the public to vote for a Presidential candidate in light of that candidate's defense of free speech. These prohibitions are classic examples of censorship.
Section 441b is a ban on
notwithstanding the fact
that a PAC created by a corporation can still speak. A PAC is a
separate association from the corporation. So the PAC
exemption from §441b's expenditure ban does not allow
corporations to speak....
Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people. The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it. The First Amendment " 'has its fullest and most urgent application' to speech uttered during a campaign for political office."
For these reasons, political speech must prevail against laws that would suppress it, whether by design or inadvertence. Laws that burden political speech are "subject to strict scrutiny," which requires the Government to prove that the restriction "furthers a compelling interest and is narrowly tailored to achieve that interest." While it might be maintained that political speech simply cannot be banned or restricted as a categorical matter, the quoted language provides a sufficient framework for protecting the relevant First Amendment interests in this case. We shall employ it here.
Premised on mistrust of governmental power, the First Amendment stands against attempts to disfavor certain subjects or viewpoints. Prohibited, too, are restrictions distinguishing among different speakers, allowing speech by some but not others. As instruments to censor, these categories are interrelated: Speech restrictions based on the identity of the speaker are all too often simply a means to control content.
Quite apart from the purpose or effect of regulating content, moreover, the Government may commit a constitutional wrong when by law it identifies certain preferred speakers. By taking the right to speak from some and giving it to others, the Government deprives the disadvantaged person or class of the right to use speech to strive to establish worth, standing, and respect for the speaker's voice. The Government may not by these means deprive the public of the right and privilege to determine for itself what speech and speakers are worthy of consideration. The First Amendment protects speech and speaker, and the ideas that flow from each.
The Court has upheld a narrow class of speech restrictions that operate to the disadvantage of certain persons, but these rulings were based on an interest in allowing governmental entities to perform their functions. The corporate independent expenditures at issue in this case, however, would not interfere with governmental functions, so these cases are inapposite. These precedents stand only for the proposition that there are certain governmental functions that cannot operate without some restrictions on particular kinds of speech. By contrast, it is inherent in the nature of the political process that voters must be free to obtain information from diverse sources in order to determine how to cast their votes. At least before Austin, the Court had not allowed the exclusion of a class of speakers from the general public dialogue.
We find no basis for the proposition that, in the context of political speech, the Government may impose restrictions on certain disfavored speakers. Both history and logic lead us to this conclusion.
The Court has recognized that First Amendment protection extends to corporations. This protection has been extended by explicit holdings to the context of political speech. Under the rationale of these precedents, political speech does not lose First Amendment protection "simply because its source is a corporation." The Court has thus rejected the argument that political speech of corporations or other associations should be treated differently under the First Amendment simply because such associations are not "natural persons...."
In Buckley, the Court addressed various challenges to the Federal Election Campaign Act of 1971 as amended in 1974....Before addressing the constitutionality of §608(e)'s independent expenditure ban, Buckley first upheld §608(b), FECA's limits on direct contributions to candidates. The Buckley Court recognized a "sufficiently important" governmental interest in "the prevention of corruption and the appearance of corruption." This followed from the Court's concern that large contributions could be given "to secure a political quid pro quo."
The Buckley Court
that the potential for quid pro quo
corruption distinguished direct contributions to candidates from
independent expenditures. The Court emphasized that "the independent
expenditure ceiling ... fails to serve any substantial governmental
interest in stemming the reality or appearance of corruption in the
electoral process" because "[t]he absence of
prearrangement and coordination . . . alleviates the danger that
expenditures will be given as a quid pro quo for improper
commitments from the candidate." Buckley
invalidated §608(e)'s restrictions on independent expenditures,
with only one Justice dissenting.
Buckley did not
§610's separate ban on
corporate and union independent expenditures, the prohibition that had
also been in the background in CIO. Had
§610 been challenged in the wake of Buckley, however, it
could not have been squared with the
reasoning and analysis of that precedent....
Notwithstanding this precedent, Congress recodified §610's corporate and union expenditure ban at 2 U. S. C. §441b four months after Buckley was decided. Section 441b is the independent expenditure restriction challenged here. Less than two years after Buckley, Bellotti, 435 U. S. 765, reaffirmed the First Amendment principle that the Government cannot restrict political speech based on the speaker's corporate identity. Bellotti could not have been clearer when it struck down a state-law prohibition on corporate independent expenditures related to referenda issues: "We thus find no support in the First . . . Amendment, or in the decisions of this Court, for the proposition that speech that otherwise would be within the protection of the First Amendment loses that protection simply because its source is a corporation that cannot prove, to the satisfaction of a court, a material effect on its business or property. . . .In the realm of protected speech, the legislature is constitutionally disqualified from dictating the subjects about which persons may speak and the speakers who may address a public issue."
It is important to note that the reasoning and holding of Bellotti did not rest on the existence of a viewpoint-discriminatory statute. It rested on the principle that the Government lacks the power to ban corporations from speaking.
Bellotti did not address the constitutionality of the State's ban on corporate independent expenditures to support candidates. In our view, however, that restriction would have been unconstitutional under Bellotti's central principle: that the First Amendment does not allow political speech restrictions based on a speaker's corporate identity.
Thus the law stood until Austin. Austin "uph[eld] a direct restriction on the independent expenditure of funds for political speech for the first time in [this Court's] history." There, the Michigan Chamber of Commerce sought to use general treasury funds to run a newspaper ad supporting a specific candidate. Michigan law, however, prohibited corporate independent expenditures that supported or opposed any candidate for state office. A violation of the law was punishable as a felony. The Court sustained the speech prohibition.
To bypass Buckley and Bellotti, the Austin Court identified a new governmental interest in limiting political speech: an antidistortion interest. Austin found a compelling governmental interest in preventing "the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public's support for the corporation's political ideas."
The Court is thus confronted
conflicting lines of precedent: a pre-Austin line that forbids
restrictions on political speech based on the speaker's corporate
identity and a post-Austin line that permits them....
In its defense of the corporate-speech restrictions in §441b, the Government notes the antidistortion rationale on which Austin and its progeny rest in part, yet it all but abandons reliance upon it. It argues instead that two other compelling interests support Austin's holding that corporate expenditure restrictions are constitutional: an anticorruption interest and a shareholder-protection interest. We consider the three points in turn.
As for Austin's antidistortion rationale, the Government does little to defend it. And with good reason, for the rationale cannot support §441b. If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech. If the antidistortion rationale were to be accepted, however, it would permit Government to ban political speech simply because the speaker is an association that has taken on the corporate form.... If Austin were correct, the Government could prohibit a corporation from expressing political views in media beyond those presented here, such as by printing books. The Government responds "that the FEC has never applied this statute to a book," and if it did, "there would be quite [a] good as-applied challenge." This troubling assertion of brooding governmental power cannot be reconciled with the confidence and stability in civic discourse that the First Amendment must secure....
Austin's antidistortion rationale would produce the dangerous, and unacceptable, consequence that Congress could ban political speech of media corporations. Media corporations are now exempt from §441b's ban on corporate expenditures. Yet media corporations accumulate wealth with the help of the corporate form, the largest media corporations have "immense aggregations of wealth," and the views expressed by media corporations often "have little or no correlation to the public's support" for those views. Thus, under the Government's reasoning, wealthy media corporations could have their voices diminished to put them on par with other media entities. There is no precedent for permitting this under the First Amendment.
The media exemption discloses further difficulties with the law now under consideration. There is no precedent supporting laws that attempt to distinguish between corporations which are deemed to be exempt as media corporations and those which are not. "We have consistently rejected the proposition that the institutional press has any constitutional privilege beyond that of other speakers." With the advent of the Internet and the decline of print and broadcast media, moreover, the line between the media and others who wish to comment on political and social issues becomes far more blurred....
There is simply no support for the
view that the First
Amendment, as originally understood, would permit the suppression of
political speech by media corporations.....
Limits on independent expenditures, such as §441b, have a chilling effect extending well beyond the Government's interest in preventing quid pro quo corruption. The anticorruption interest is not sufficient to displace the speech here in question. Indeed, 26 States do not restrict independent expenditures by for-profit corporations. The Government does not claim that these expenditures have corrupted the political process in those States....
For the reasons explained above, we now
independent expenditures, including those made by corporations, do not
give rise to corruption or the appearance of corruption.
When Buckley identified a sufficiently important governmental interest in preventing corruption or the appearance of corruption, that interest was limited to quid pro quo corruption. The fact that speakers may have influence over or access to elected officials does not mean that these officials are corrupt: "Favoritism and influence are not . . . avoidable in representative politics. It is in the nature of an elected representative to favor certain policies, and, by necessary corollary, to favor the voters and contributors who support those policies. It is well understood that a substantial and legitimate reason, if not the only reason, to cast a vote for, or to make a contribution to, one candidate over another is that the candidate will respond by producing those political outcomes the supporter favors. Democracy is premised on responsiveness."
Reliance on a "generic favoritism or influence theory . . . is
with standard First Amendment analyses because it is unbounded and
susceptible to no limiting principle."
The appearance of influence or
furthermore, will not cause
the electorate to lose faith in our democracy. By definition, an
independent expenditure is political speech presented to the electorate
that is not coordinated with a candidate. The fact that a corporation,
or any other speaker, is willing to
spend money to try to persuade voters presupposes that the people have
the ultimate influence over elected officials. This is inconsistent
with any suggestion that the electorate will refuse " 'to take
democratic governance' " because of additional political speech
a corporation or any other speaker....
contends further that
expenditures can be limited because of its interest in protecting
dissenting shareholders from being compelled to fund corporate
political speech. This asserted interest, like Austin's
antidistortion rationale, would allow the Government to ban the
political speech even of media corporations. Assume, for example,
that a shareholder of a corporation that
owns a newspaper disagrees with the political views the newspaper
expresses. Under the Government's view, that potential
disagreement could give the Government the authority to restrict the
media corporation's political speech. The First Amendment does not
allow that power. There is, furthermore, little evidence of abuse that
cannot be corrected by shareholders "through the procedures of
Our precedent is to be respected
unless the most convincing of
reasons demonstrates that adherence to it puts us on a course that is
Austin is undermined
experience since its
announcement. Political speech is so ingrained in our culture that
speakers find ways to circumvent campaign finance laws. Our Nation's
speech dynamic is changing, and
informative voices should not have to circumvent onerous restrictions
to exercise their First Amendment rights. Speakers have become adept at
presenting citizens with sound bites, talking points, and scripted
messages that dominate the 24-hour news cycle. Corporations, like
individuals, do not have monolithic views. On certain topics
corporations may possess valuable expertise, leaving them the best
equipped to point out errors or fallacies in speech of
Rapid changes in technology--and the creative dynamic inherent in the concept of free expression--counsel against upholding a law that restricts political speech in certain media or by certain speakers. See Part II-C, supra. Today, 30-second television ads may be the most effective way to convey a political message. See McConnell, supra, at 261 (opinion of Scalia, J.). Soon, however, it may be that Internet sources, such as blogs and social networking Web sites, will provide citizens with significant information about political candidates and issues. Yet, §441b would seem to ban a blog post expressly advocating the election or defeat of a candidate if that blog were created with corporate funds. See 2 U. S. C. §441b(a); MCFL, supra, at 249. The First Amendment does not permit Congress to make these categorical distinctions based on the corporate identity of the speaker and the content of the political speech.
Due consideration leads to this conclusion: Austin, 494 U. S. 652, should be and now is overruled. We return to the principle established in Buckley and Bellotti that the Government may not suppress political speech on the basis of the speaker's corporate identity. No sufficient governmental interest justifies limits on the political speech of nonprofit or for-profit corporations.
Austin is overruled, so it provides no basis for allowing the Government to limit corporate independent expenditures.... As the Government appears to concede, overruling Austin "effectively invalidate[s] not only BCRA Section 203, but also 2 U. S. C. 441b's prohibition on the use of corporate treasury funds for express advocacy." Section 441b's restrictions on corporate independent expenditures are therefore invalid and cannot be applied to Hillary.
Citizens United next challenges
BCRA's disclaimer and disclosure provisions as applied to Hillary
and the three advertisements for the movie. Under BCRA §311,
electioneering communications funded by anyone other than a candidate
must include a disclaimer that " '_______ is responsible for the
content of this advertising.' " The
statement must be made in a "clearly spoken manner," and displayed on
the screen in a "clearly readable manner" for at least four
It must state that the communication "is not authorized by any
candidate or candidate's committee"; it must also display the name and
address (or Web site address) of the person or group that funded the
advertisement. Under BCRA §201, any person who
than $10,000 on electioneering communications within a calendar year
must file a disclosure statement with the FEC. That statement must
identify the person making the expenditure, the
amount of the expenditure, the election to which the communication was
directed, and the names of certain contributors.
Disclaimer and disclosure
requirements may burden the ability
to speak, but they "impose no ceiling on campaign-related activities"
and "do not prevent anyone from
speaking," The Court has
subjected these requirements to "exacting scrutiny," which requires a
"substantial relation" between the disclosure requirement and a
"sufficiently important" governmental interest....
In Buckley, the Court
could be justified based on a governmental interest in "provid[ing] the
electorate with information" about the sources of election-related
When word concerning the plot of the movie Mr. Smith Goes to Washington reached the circles of Government, some officials sought, by persuasion, to discourage its distribution. Under Austin, though, officials could have done more than discourage its distribution--they could have banned the film. After all, it, like Hillary, was speech funded by a corporation that was critical of Members of Congress. Mr. Smith Goes to Washington may be fiction and caricature; but fiction and caricature can be a powerful force.
Modern day movies, television comedies, or skits on Youtube.com might portray public officials or public policies in unflattering ways. Yet if a covered transmission during the blackout period creates the background for candidate endorsement or opposition, a felony occurs solely because a corporation, other than an exempt media corporation, has made the "purchase, payment, distribution, loan, advance, deposit, or gift of money or anything of value" in order to engage in political speech. Speech would be suppressed in the realm where its necessity is most evident: in the public dialogue preceding a real election. Governments are often hostile to speech, but under our law and our tradition it seems stranger than fiction for our Government to make this political speech a crime. Yet this is the statute's purpose and design.
Some members of the public might consider Hillary to be insightful and instructive; some might find it to be neither high art nor a fair discussion on how to set the Nation's course; still others simply might suspend judgment on these points but decide to think more about issues and candidates. Those choices and assessments, however, are not for the Government to make. "The First Amendment underwrites the freedom to experiment and to create in the realm of thought and speech. Citizens must be free to use new forms, and new forums, for the expression of ideas. The civic discourse belongs to the people, and the Government may not prescribe the means used to conduct it."
The judgment of the District Court is reversed with respect to the constitutionality of 2 U. S. C. §441b's restrictions on corporate independent expenditures. The judgment is affirmed with respect to BCRA's disclaimer and disclosure requirements. The case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Justice Stevens, with whom Justice Ginsburg, Justice Breyer, and Justice Sotomayor join, concurring in part and dissenting in part.
The real issue in this case concerns how, not if, the appellant may finance its electioneering. Citizens United is a wealthy nonprofit corporation that runs a political action committee (PAC) with millions of dollars in assets. Under the Bipartisan Campaign Reform Act of 2002 (BCRA), it could have used those assets to televise and promote Hillary: The Movie wherever and whenever it wanted to. It also could have spent unrestricted sums to broadcast Hillary at any time other than the 30 days before the last primary election. Neither Citizens United's nor any other corporation's speech has been "banned." All that the parties dispute is whether Citizens United had a right to use the funds in its general treasury to pay for broadcasts during the 30-day period. The notion that the First Amendment dictates an affirmative answer to that question is, in my judgment, profoundly misguided. Even more misguided is the notion that the Court must rewrite the law relating to campaign expenditures by for-profit corporations and unions to decide this case.
The basic premise underlying the Court's ruling is its iteration, and constant reiteration, of the proposition that the First Amendment bars regulatory distinctions based on a speaker's identity, including its "identity" as a corporation. While that glittering generality has rhetorical appeal, it is not a correct statement of the law. Nor does it tell us when a corporation may engage in electioneering that some of its shareholders oppose. It does not even resolve the specific question whether Citizens United may be required to finance some of its messages with the money in its PAC. The conceit that corporations must be treated identically to natural persons in the political sphere is not only inaccurate but also inadequate to justify the Court's disposition of this case.
In the context of election to public office, the distinction between corporate and human speakers is significant. Although they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office. Because they may be managed and controlled by nonresidents, their interests may conflict in fundamental respects with the interests of eligible voters. The financial resources, legal structure, and instrumental orientation of corporations raise legitimate concerns about their role in the electoral process. Our lawmakers have a compelling constitutional basis, if not also a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races.
The majority's approach to corporate electioneering marks a dramatic break from our past. Congress has placed special limitations on campaign spending by corporations ever since the passage of the Tillman Act in 1907. We have unanimously concluded that this "reflects a permissible assessment of the dangers posed by those entities to the electoral process," and have accepted the "legislative judgment that the special characteristics of the corporate structure require particularly careful regulation." The Court today rejects a century of history when it treats the distinction between corporate and individual campaign spending as an invidious novelty born of Austin v. Michigan Chamber of Commerce, 494 U. S. 652 (1990). Relying largely on individual dissenting opinions, the majority blazes through our precedents, overruling or disavowing a body of case law including FEC v. Wisconsin Right to Life, Inc., 551 U. S. 449 (2007) (WRTL), McConnell v. FEC, 540 U. S. 93 (2003), FEC v. Beaumont, 539 U. S. 146 (2003), FEC v. Massachusetts Citizens for Life, Inc., 479 U. S. 238 (1986) (MCFL), NRWC, 459 U. S. 197, and California Medical Assn. v. FEC, 453 U. S. 182 (1981).
Justice Brandeis stressed the
adhering to rules
the Court has "developed ... for its own governance" when deciding
constitutional questions. Because departures from those rules always
enhance the risk of error, I shall review the background of this case
in some detail before explaining why the Court's analysis rests on a
faulty understanding of Austin and McConnell and of
our campaign finance jurisprudence more generally...
The Court's ruling threatens to undermine the integrity of elected institutions across the Nation. The path it has taken to reach its outcome will, I fear, do damage to this institution....