Voting with Dollars instead of Ballots

An opinion by Patricia L Johnson 

Citizens United v. Federal Election Commission is a 5-4 decision made by the United States Supreme Court on January 21, 2010. 

The United States District Court for the District of Columbia (the lower court) ruled on this case [Case No. 07-2240] on July 18, 2008, as follows:

Holding: Political spending is a form of protected speech under the First Amendment, and the government may not keep corporations or unions from spending money to support or denounce individual candidates in elections. While corporations or unions may not give money directly to campaigns, they may seek to persuade the voting public through other means, including ads, especially where these ads were not broadcast.

This decision was subsequently reversed by the USSC.

When the action was brought before the lower court, Citizens United was a nonprofit corporation with an annual budget of approximately $12 million dollars, the majority coming from individual donations, with a small amount coming from for-profit corporations.

Citizens United released a film in January of 2008, called Hillary:  The Movie, a 90-minute documentary about Hillary Clinton, who was then a Senator, running for President in the 2008 election.

The movie was highly critical of, Senator Clinton, who was mentioned by name in the movie time and again through interviews with political commentators and other individuals.

The movie was subsequently released by Citizens United, but they also wanted to release it through video-on-demand to digital cable subscribers.  Video-on-demand allows the cable viewer to watch the program at any time.  Depending upon the show, some video-on-demand shows are free, while others require the viewer to pay a fee.

A cable company offered Citizens United $1.2 million to make the movie available on a video-on-demand channel, “Elections ‘08.”, which would be free to the cable viewers.

Citizens United, in an effort to promote the film, produced two 10-second ads and one 30-second ad for the movie, with each ad containing a short statement about candidate Clinton, as well as the name of the movie and the movie’s website address.   Citizens United intended to run these ads on both broadcast and cable television prior to the election.

When this case was brought before the USSC, federal law was as follows:

As amended by §203 of the Bipartisan Campaign Reform Act of 2002(BCRA), federal law prohibits corporations and unions from using their general treasury funds to make independent expenditures for speech that is an “electioneering communication” or for speech that expressly advocates the election or defeat of a candidate. 2 U. S. C. §441b. An electioneering communication is “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 election,§434(f)(3)(A), and that is “publicly distributed,” 11 CFR §100.29(a)(2),which in “the case of a candidate for nomination for President . . . 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,” §100.29(b)(3)(ii). Corporations and unions may establish apolitical action committee (PAC) for express advocacy or electioneering communications purposes. 2 U. S. C. §441b(b)(2). In McConnell v.Federal Election Comm’n, 540 U. S. 93, 203–209, this Court upheld limits on electioneering communications in a facial challenge, relying on the holding in Austin v. Michigan Chamber of Commerce, 494 U.S. 652, that political speech may be banned based on the speaker’s corporate identity.

A precedent is a previous decision made by the high court.  When there is a precedent in a case, the decision in that prior case becomes the law of the land. 

The problem with Citizens United v. Federal Election Commission is the Supreme Court now had two precedents’ to consider when deciding this case, pre-Austin and post-Austin.  Pre-Austin forbid speech restrictions, based  on corporate identity, while post-Austin permitted restrictions.  In other words, one precedent contradicted the other while, the First Amendment to the Constitution clearly states

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

In the end, the decision made by the Supreme Court was mixed.  Part of Austin was overruled and part was upheld resulting in a 183-page, 5-4 decision. 

It was decided, the film Hillary:  The Movie, would not be allowed to be shown on television within 30 days of the 2008 Democratic primaries [the film and ads could be aired on TV as long as they were not shown within the 30 day period], while overturning the restrictions placed on independent expenditures by corporations and unions.  Corporations and Unions could now place ads on TV.

KENNEDY, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and SCALIA and ALITO, JJ., joined, in which THOMAS, J., joined as to all but Part IV, and in which STEVENS, GINSBURG, BREYER, and SO-TOMAYOR, JJ., joined as to Part IV. ROBERTS, C. J., filed a concurring opinion, in which ALITO, J., joined. SCALIA, J., filed a concurring opinion, in which ALITO, J., joined, and in which THOMAS, J., joined in part. STEVENS, J., filed an opinion concurring in part and dissenting in part,in which GINSBURG, BREYER, and SOTOMAYOR, JJ., joined. THOMAS, J., filed an opinion concurring in part and dissenting in part.

This decision by the Supreme Court has turned out to be one of the most controversial in the history of politics.  Proponents claim it’s “freedom of speech”; while opponents claim it allows special interests, including foreign corporations, to buy U.S. elections.

The results of this decision were seen in the 2010 interim election when you could not turn on your TV without seeing a political ad, financed in whole or part by special interests. 

Name recognition has always been a part of American politics.  The uninformed voter will vote for a particular person/party if he/she sees that name over and over again, and that’s exactly what has happened with these special interest ads.  They support the candidate they feel will do them the most good when they get in office and the average American voter sees that name over and over and over again.  By the time they get to their polling place, the voter has been brainwashed and automatically votes for the name they recognized.

What has not been taken into consideration by special interest groups is the fact that American voters are becoming more involved in politics and learning the ropes.  Special interests may be able to buy the next few elections because it’s not that easy for the average voter to separate fact from fiction,  but sooner or later “We the People” will prevail in our elections.


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