Geof Stone Explains 'Citizens United'
The Supreme Court's decision yesterday in Citizens United v. Federal Election Commission has rightly generated a lot of attention. It is, indeed, a profoundly important decision that will have a dramatic impact on American politics. In a five-to-four decision, with the justices voting along familiar lines (Roberts, Scalia, Kennedy, Thomas and Alito on one side; Stevens, Ginsburg, Breyer and Sotomayor on the other), the Court held unconstitutional a key provision of the McCain-Feingold Bipartisan Campaign Finance Act that had placed limits on the amount of money corporations and unions could spend to support or oppose political candidates in the closing days of a campaign. The goal of the Act was to limit the impact corporations and unions could have on American politics. What I want to do in this post is to explain the decision.
After Watergate, Congress enacted legislation that limited both the amount that individuals and organizations could contribute directly to political candidates and the amount they could independently spend in support of or in opposition to particular political candidates. The purpose of the legislation was to create a "fairer" political process, both by reducing the opportunities for corruption and improper influence and by "equalizing" to some degree the influence different individuals and organizations could have on the political process. Just as we have "one person, one vote," the idea was the move towards a system in which we have "one person, one dollar."
In Buckley v. Valeo, decided in 1976, the Supreme Court held that the contribution limits were constitutional, but that the expenditure limits violated the First Amendment. In reaching this result, the Court acknowledged that political contributions and expenditures are "speech" within the meaning of the First Amendment, that the most serious infringements of First Amendment rights are laws that discriminate against particular points of view (for example, "No person may criticize the war"), and that the contribution and expenditure limits did not discriminate against particular points of view, but applied across the boards, without regard to whether the "speaker" was supporting a Republican or a Democrat. It therefore analogized these limits to laws regulating the size of billboards or the hours in which one may use a loudspeaker in residential neighborhoods. That is, like those laws, the contribution and expenditure limits regulated speech without regard to the speaker's particular views. In such circumstances, the Court generally applies of form of "balancing" to determine whether the law is constitutional. It assesses the severity of the law's impact on free speech, and then asks whether the government's interest is sufficiently weighty to justify the particular restriction at issue.