Justin Shlensky
Courtney Sommer
Public Interest Law & Policy
Spring 2013
Citizens United Case Study
Introduction and Background Information
Today’s debate over campaign finance reform had its start in 1907 with the Tillman Act
which banned corporate donations to candidates.1 Further restrictions were enacted in 1972 with
the passage of the Federal Election Campaign Act (FECA), which required that federal
campaigns disclose their donors,2 and additional restrictions closely followed with the 1974
amendments to the FECA introducing statutory limits on contributions and creating the Federal
Election Commission (FEC) after the Watergate scandal.3
But the legislation that sparked the debate that led to Citizens United was the Bipartisan
Campaign Reform Act of 2002, also known as the McCain-Feingold Act.4 The same day
President George W. Bush signed McCain-Feingold into law in 2002, the National Rifle
Association (NRA) filed a lawsuit challenging its constitutionality in the United States District
Court for the District of Columbia.5 Another suit challenging the constitutionality of McCainFeingold was filed that day in the same court by then-Senator Mitch McConnell, and the cases
were consolidated into McConnell v. FEC.6 On December 10, 2003, the Supreme Court issued a
5-to-4 decision on McConnell upholding nearly the entire law.7 Then, during Bush’s second
1
Andy Kroll, Follow the Dark Money, Mother Jones, July 2012 at 17.
Id.
3
Id. at 18.
4
Id.
5
Id. at 23.
6
Id. at 24.
7
Id.
2
1
term, Chief Justice Roberts and Justice Alito joined the Court, with Justice Alito replacing
Justice Sandra Day O’Connor, the key fifth vote in McConnell.8 The history of campaign
finance reform and the changes in the Court paved the way for the controversial Citizens United
v. FEC.
Citizens United is a Virginia corporation whose mission is to “restor[e] our government
to citizens’ control” by “reassert[ing] the traditional American values of limited government,
freedom of enterprise, strong families, and national sovereignty and security.”9 Formed in 1988,
the corporation produces commercials, web ads, and documentaries about political issues and
candidates in an effort to influence its audience.10
In 2008, Citizens United produced Hillary, a movie which negatively detailed thenSenator Hillary Clinton’s political status in America and basically served as a film urging
viewers to vote against Clinton in the upcoming 2008 presidential election. Citizens United
wanted to promote Hillary via video-on-demand within 30 days of the 2008 primary elections.11
However, under 2 U.S.C. § 441b, Citizens United would have been prohibited from showing
Hillary and advertisements for Hillary because they were corporate-funded independent
expenditures.12 In anticipation of receiving civil and criminal penalties for violating § 441b for
showing and advertising for Hillary, Citizens United sought declaratory and injunctive relief.13
Citizens United argued that § 441b was unconstitutional as applied to Hillary and the
8
Id.
Citizens United, http://www.citizensunited.org (last visited Feb. 17, 2013).
10
Id.
11
Citizens United v. Federal Election Com’n, 130 S.Ct. 886, 888 (2010).
12
Id.
13
Id.
9
2
advertisements, and that the BCRA’s disclaimer, disclosure, and reporting requirements in
sections 201 and 311 were unconstitutional as applied to Hillary and the television ads.14
Amir Tayrani, counsel for Citizens United, said in a telephone interview that what started
out as a narrow challenge of wanting to be able to produce DVDs and on-demand videos became
much more significant when the Court asked to hear arguments a second time in order to issue a
decision on the broader constitutional question.15 In March 2009, Citizens United won a narrow
victory when the Court held that the McCain-Feingold Act, or the BCRA, did not apply to DVDs
and on-demand videos.16 Mr. Tayrani said that overruling Austin was not the focus of the case
when his firm, Gibson, Dunn & Crutcher LLP, first brought it, and the decision they expected to
receive in June of 2009 was instead a request for a new brief so the Court could hear arguments
for overruling Austin’s restrictions.17 Mr. Tayrani said that, because attorneys at Gibson Dunn
knew the Chief Justice and Justice Alito were reluctant to overturn prior Supreme Court
precedents, they initially argued for a narrow result distinguishing precedents, and it was the
Court that signaled it wanted to reconsider the entire constitutional issue.18 After that point, the
firm advocated for, and welcomed the result of, overturning Austin.19
Citizens United Supreme Court Decision
Citizens United predominantly involves three issues, all dealing with electioneering
communications and speech protected by the First Amendment. First, the Court addressed
whether the government could suppress political speech based upon a speaker’s corporate
14
Id.
Telephone Interview with Tayrani, Amir, attorney, Gibson, Dunn & Crutcher LLP, Washington, D.C.
(Feb. 13, 2013).
16
Id.
17
Id.
18
Id.
19
Id.
15
3
identity. Second, whether a federal statute could constitutionally bar independent corporate
expenditures for electioneering communications. Third, whether the disclaimer and disclosure
requirements of the Bipartisan Campaign Reform Act of 2002 (BCRA) violated the First
Amendment, as applied to Citizens United’s film, Hillary, and three advertisements for the film.
The Court held, respectively, that: (1) the government could not suppress political speech based
upon a speaker’s corporate identity; (2) a federal statute could not bar independent corporate
expenditures for electioneering communications; and (3) the disclaimer and disclosure
requirements of the BCRA, as applied to Citizens United’s film, Hillary, and their three
advertisements for the film did not violate the First Amendment. Below, we will address each
issue much more thoroughly.
The first major issue that the Court addressed in Citizens United was whether, under the
First Amendment, the government could suppress political speech based upon a speaker’s
corporate identity, overruling Austin. A 5 - 4 majority of the Justices held that it could not,
overruling Austin.20 Austin held that when in comes to political speech, limits on a corporation’s
independent expenditures are constitutional under the First Amendment.21 In Austin, Justices
Kennedy, Scalia, and O’Connor argued in a dissenting opinion that the corporate identity should
not prohibit corporations from exercising their independent expenditures.22 As mentioned
earlier, Citizens United’s initial claim against the FEC did not ask any court to reconsider and
overrule Austin’s holding regarding corporate expenditures; it was not until the claim reached the
Supreme Court that the reconsideration of Austin was brought up. To further this confusion, it
was the Court itself that asked for a reconsideration of Austin.
20
Citizens United, 130 S.Ct. at 913.
Austin, 494 U.S. at 669.
22
Id. at 713 (Kennedy, J., dissenting).
21
4
The five-Justice majority in Citizens United found Austin’s antidistortion rationale
unconvincing and unconstitutional. The antidistortion rationale is as such: since corporations
have the ability to spend massive amounts of money on political expenditures, such “immense
aggregations of wealth” possess the ability to distort the electorate by influencing candidate
elections.23 Austin reiterated that the government’s interest in preventing corruption is strong
enough to prohibit corporations from influencing political candidate elections with their war
chests.24 However, the Court in Citizens United argued that the government’s interest in
preventing corruption by placing restrictions on corporations “from obtaining “‘an unfair
advantage in the political marketplace’” by using “‘resources amassed in the economic
marketplace.’””25 The majority of the Court explained that all speakers, whether individuals,
media, unions, or corporations, use money gained in the economic marketplace to fund their
speech, and nevertheless, the First Amendment protects such speech.26
Kennedy’s majority opinion relied on Buckley and Bellotti to show that throughout the
years, the Court has held that First Amendment protections apply to corporations just as they do
to individuals, and that Austin “interferes with the ‘open marketplace’ of ideas protected by the
First Amendment.”27 The Court basically equated the corporate identity with individual identity,
and strived to conclude that Austin was unconstitutional because of its unfair treatment of
corporations. However, this is not how the four Justices who dissented viewed Austin.
Justice Stevens, joined by Justices Ginsburg, Breyer, and Sotomayor argued in dissent
that Citizens United inappropriately handed Austin. Stevens, toward the beginning of his dissent,
23
Id. at 659-60.
Id. at 659.
25
Citizens United, 130 S.Ct. at 883, referencing and quoting Austin, 494 U.S. at 659.
26
Id. at 884.
27
Id. at 906.
24
5
boldly claimed that, “[e]ssentially, five Justices were unhappy with the limited nature of [Austin],
so they changed the case to give themselves an opportunity to change the law.”28 Stevens further
contended that the majority merely trumps stare decisis because they did not like Austin.29 The
dissenting Justices were critical of the majority’s claims that Austin “banned” corporate speech;
the dissent argued that the statutes upheld in Austin did not impose an ‘absolute’ ban on
corporate political spending.30 Stevens also explained that Austin’s treatment of corporate
speakers was not incorrect because “[c]ampaign finance distinctions based on corporate identity
tend to be less worrisome . . . because the ‘speakers’ are not natural persons, much less members
of our political community, and the governmental interests are of the highest order.”31
The second major issue addressed in Citizens United was whether a federal statute could
constitutionally bar independent corporate expenditures for electioneering communications. The
majority found that such a bar was unconstitutional, with Kennedy calling it “an outright ban,
backed by criminal sanctions.”32 According to the Bipartisan Campaign Reform Act of 2002
(BCRA), 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 or 60 days of a general election.”33 Corporations and unions, under
the BCRA, were barred from using funds from their general treasury for express advocacy or
electioneering communications, but they could establish a “‘separate segregated fund,’” or PAC,
for such purposes.34 This bar on corporate contribution was upheld in McConnell because of the
28
Id. at 932 (Stevens, J., dissent).
Id. at 938.
30
Id. at 942.
31
Id. at 947.
32
Id. at 897.
33
Id. at 887, quoting Bipartisan Campaign Reform Act of 2002.
34
Id. at 887.
29
6
availability of PACs that allow corporations to still speak even if it is through funds outside of
their general treasury.35
In the District Court decision, the court would not overrule McConnell in deciding in
favor of Citizens United on the issue of the facial validity of §441b, but it “‘pas[sed] upon’ the
issue,” allowing the Supreme Court to address the facial validity of the statute and Citizens
United’s challenge to Austin.36 The Court, determining it necessary to consider Citizens
United’s challenge to Austin, held that Citizens United was not introducing a “‘new claim’” but
was introducing “‘a new argument to support what has been [a] consistent claim: that [the FEC]
did not accord [Citizens United] the rights it was obliged to provide by the First Amendment.’”37
The Court decided it could not address the narrow issue originally presented by Citizens United
without assuming the validity of restricting corporate political speech altogether.38 Because
Citizens United’s original claim implied Austin, and therefore §441b, were invalid, the Court
assumed an obligation to make a broader decision on the issue than what Citizens United
requested.39
The Court gave another justification for overturning Austin when it had upheld Austin’s
restrictions in prior cases: four members of the McConnell Court were ready to overrule Austin
and the majority in McConnell considered the validity of §441b.40 Additionally, the decision in
Wisconsin Right to Life, Inc. v. Federal Election Comm’n paved the way for the Citizens United
Court by allowing a challenge to the statute to be maintained.41 In its stare decisis argument, the
35
Id. at 897.
Id. at 893.
37
Id.
38
Id.
39
Id.
40
Id. at 894.
41
Id.
36
7
Court decided that the factors used to determine whether precedent should be upheld or
overturned pointed to rejecting Austin for its “offensive[ness] to the First Amendment.”42 The
Court deemed Austin “not well reasoned,” holding that it “abandoned First Amendment
principles” and relied on flawed reasoning from prior decisions.43
The third major issue addressed in Citizens United was whether the disclaimer and
disclosure requirements of the Bipartisan Campaign Reform Act of 2002 (BCRA) violated the
First Amendment, as applied to Citizens United’s film, Hillary, and three advertisements for the
film. Eight Supreme Court Justices held that the BCRA’s disclaimer and disclosure
requirements did not violate the First Amendment, as applied to Citizens United, and only Justice
Thomas dissented in that respect.44 The disclaimer requirement, BCRA § 311, requires an
advertiser, other than a candidate, of a televised electronic communication to include a
disclaimer that
““‘____________ is responsible for the content of this advertising.’””45
This statement “must be made in a ‘clearly spoken manner,’ for at least for four seconds [,] must
state that the communication ‘is not authorized by any candidate or candidate’s committee’” [,
and] must also display the name and address (or Web site address) of the person or group that
funded the advertisement.”46 The disclosure requirement, BCRA § 201, states that “any person
who spends more than $10,000 on electioneering communications within a calendar year must
file a disclosure statement with the FEC.”47 The disclosure statement “must identify the person
42
Id. at 911-912.
Id. at 912.
44
Id. at 916, 979-982.
43
45
Id. at 914, quoting 2 U.S.C. §
46
Id. at 914, referencing and quoting 2 U.S.C.
47
441d(d)(2).
§ 441d(a)(3).
Id. at 914, referencing 2 U.S.C. § 434(f)(1).
8
making the expenditure, the amount of the expenditure, the election to which the communication
was directed, and the names of certain contributors.”48
Citizens United challenged both requirements, as applied to their film, Hillary, and their
three advertisements. Citizens United unsuccessfully argued that the disclaimer requirement of
BCRA § 311 does not justify the government’s “interest in providing information to the
electorate.”49 The Court found that since Citizens United’s ads fell within the BCRA’s definition
of “electioneering communication” because the ads referenced “then-Senator Clinton by name
shortly before a primary and contained pejorative references to her candidacy[,]” the disclaimers
would avoid confusion by clarifying that the ads were funded by neither a candidate nor a
political party.50 In reaching its decision, regarding § 311, the Court referenced its holdings and
reasoning in Buckley and McConnell, and explained that the disclaimer provisions were upheld
in those cases to insure that the electorate would not think that such advertisements were funded
by a candidate or political party and because the Court wants American citizens to make
informed political decisions.
Citizens United also unsuccessfully challenged § 201’s disclosure requirements, as
applied to their advertisements. Citizens United argued that the disclosure requirements would
not aid the electorate to make informed political decisions and that the disclosure requirements
should be limited to “speech that is the functional equivalent of express advocacy.”51 The Court
rejected both of Citizens United’s argument because “the public has an interest in knowing who
is speaking about a candidate shortly before an election” and the disclosure requirements
48
Id. at 914, referencing 2 U.S.C. §
434(f)(2).
49
Id. at 914.
Id. at 915.
51
Id.
50
9
accomplish such interests.52 Citizens United made another argument, that the disclosure
requirements could “chill donations to an organization by exposing donors to retaliation.”53 The
Court rejected that argument because Citizens United failed to produce any evidence of its
members facing threats or reprisals and then pointed out that Citizens United’s donors’ have had
their identities disclosed for years and none have claimed to have been harassed or retaliated
against due to their donations.54
As stated above, Justice Thomas was the only Justice to argue that BCRA §§ 201 and 311
were unconstitutional.55 Thomas argued that there have been certain times in the recent past
when donors to certain political causes were harassed or threatened and blamed §§ 201 and 311
for the ability to harass and/or threaten such donors.56 Thomas also claimed that such disclosure
and disclaimer requirements would chill First Amendment protected speech.57
In summation, Citizens United involved three main issues, all stemming from Hillary, a
movie that Citizens United produced in 2008, just before the January primary elections. First,
the Court held that the government could not suppress political speech based upon a speaker’s
corporate identity. The Court also determined that a federal statute, 2 U.S.C. § 441b, could not
bar independent corporate expenditures for electioneering communications. Lastly, the Court
held that BCRA §§ 201 and 311, the disclosure and disclaimer requirements, did not violate the
First Amendment, as applied Hillary and its ads.
Issues and Obstacles Faced by Litigants and Lawyers in Citizens United
52
Id.
Id. at 916.
54
Id.
55
Id. at 980 (Thomas, J., dissenting).
56
Id. at 980-81.
57
Id. at 982.
53
10
Peter Ferrara, General Counsel for The American Civil Rights Union (ACRU), filed
numerous amicus briefs in support of Citizens United. He claimed that ACRU faced no
obstacles arguing in support of Citizens United and that it was an easy and righteous claim to
become involved in given the political correctness and First Amendment issues that Citizens
United stood for.58
For Mr. Tayrani of Gibson Dunn, the firm who represented Citizens United, it was a
challenge to ask the Supreme Court to overturn its own decisions on the issue of campaign
finance, especially because of the Chief Justice and Justice Alito’s hesitance to do so.59 But, Mr.
Tayrani found many more strengths to their position and the timing of the case than he did
challenges, an understandable view given the outcome of the case.60
Impact of Citizens United on the Litigants and Lawyers
Mr. Tayrani found being involved in Citizens United after only being six or seven years
out of law school extremely rewarding.61 He believes the case changed the way the election
process works and it allowed Citizens United to continue participating in political campaigns in a
way it could not do until the decision of the case was issued.62 Mr. Tayrani said the outcome of
Citizens United transcended the litigants’ expectations, and he is proud that, because of the
Court’s holding, individuals are able to band together as corporations or non-profits to get their
58
Telephone Interview with Ferrara, Peter, General Counsel, The American Civil Rights Union,
Alexandria, VA (Feb. 6, 2013).
59
Telephone Interview with Tayrani, Amir, attorney, Gibson, Dunn & Crutcher LLP, Washington, D.C.
(Feb. 13, 2013).
60
Id.
61
Id.
62
Id.
11
voices heard in the political process.63 In a surprising statement, Peter Ferrara of ACRU claimed
that the impact had very little effect on ACRU, if any effect at all.64
Impact of Citizens United on the Public
Alex Polikoff, who has written on Citizens United65, stated “By enabling corporations to
buy more election influence I suspect that public policy has been and is being influenced in procorporate ways. I do fear that one result of CU will be to increase distrust of the electoral
process. I don't know whether the public is now worse-informed but I fear that campaigning,
thanks in part to CU, is moving away from reasoned discussion of issues and toward "attack"
ads.”66 He also believes that Citizens United has made corporations more powerful that their
charters initially envisaged, and that the decision, given time, will likely erode Congress’s power
to regulate congressional elections.67 Mr. Polikoff, an individual who does not hide his true
feelings toward the Citizens United majority decision, from both legal and personal, value-based
judgments, postulates that “[b]y giving corporations virtually unlimited powers of election
spending, I think corporate wealth has been enabled to "unfairly" influence elections . . . namely,
that given the realities of corporate wealth and power in American society[,] the CU result is
more harmful to the American democratic system than the opposite result would have been.”
63
Id.
Telephone Interview with Ferrara, Peter (Feb. 6, 2013).
65
Alexander Polikoff, So How Did We Get Into This Mess? Observations on the Legitimacy of Citizens
United, 105 Nw. U. L. Rev. Colloquy 203 (2011), http://www.law.northwestern.edu/lawreview/colloquy/
2011/4/LRColl2011n4Polikoff.pdf.
66
Written Interview with Polikoff, Alexander, Director of Public Housing Program, Business and
Professional People for the Public Interest, Chicago, IL (Feb. 13, 2013).
67
Id.
64
12
In a disappointing phone interview, Peter Ferrara of ACRU claimed that Citizens United
did not have much of an effect in public policy. However, he did say “Citizens United
reaffirmed that the corporate point of view is a way for the public to hear opinions and that the
First Amendment protects corporate speech and individual speech; it doesn’t discriminate.”68
Mr. Tayrani believed that the case had a much more significant impact than he ever
thought possible.69 He stated that no other case has had a more profound impact on the political
process, and thus the American public, than Citizens United did.70 Prior to the Supreme Court
overturning Austin and the restrictions that came with it, Mr. Tayrani thought that it was difficult
for individuals to get their voices heard on their own.71 But since Citizens United, individuals
are able to pool their money and speak through a corporation or non-profit as one larger voice,
rather than a multitude of smaller voices.72 That the individuals who are behind the corporations
and non-profits are able to speak through groups with shared interests is a good outcome, he
believes.73
Another benefit of the outcome of Citizens United that Mr. Tayrani has seen is the public
debate that has been started.74 He stated the case sparked public debate about the way elections
should be funded, and he believed anything that is able to spark public debate is a good thing.75
Mr. Tayrani concluded that, since Citizens United, there is a difference in the way campaigns
68
Telephone Interview with Ferrara, Peter (Feb. 6, 2013).
Telephone Interview with Tayrani, Amir, attorney, Gibson, Dunn & Crutcher LLP, Washington, D.C.
(Feb. 13, 2013).
70
Id.
71
Id.
72
Id.
73
Id.
74
Id.
75
Id.
69
13
are funded, but the voices that are heard remain the same.76 He sees corporations as still being
limited because of the restriction on direct contributions, but “corporations and non-profits can
now speak freely” and “individuals have their voices heard in a way they otherwise could not
before 2010.”77 He sees individuals as having a “greater voice in the political process” because
of the outcome of Citizens United.78
Fred Wertheimer, the former president of the advocacy group Common Cause and
current head of Democracy 21, two organizations with missions to keep corruption out of
government and make the political process more transparent, has helped lead the movement for
campaign finance reform.79 After the Citizens United decision was issued, he called it “‘a
disaster for the American people’ and ‘the most radical and destructive campaign finance
decision in Supreme Court history.”80 Others involved in the campaign finance debate have
compared the decision to the 1857 Dred Scott decision in how misguided it was.81 Even
President Obama has expressed a concern for the impact Citizens United will have, stating in his
2010 State of the Union address that the Court “‘reversed a century of law that [he] believe[s]
will open the floodgates for special interests.’”82 A recent poll has shown that 6 in 10 people say
they disagree with Citizens United and 8 in 10 say there is too much “‘big money’” in politics.83
Some people have even begun considering fighting for a constitutional amendment to reverse
Citizens United’s impact.84 But what has become possibly the most public criticism of Citizens
76
Id.
Id.
78
Id.
79
Kroll, supra note 1, at 18.
80
Id. at 26.
81
Id.
82
Id.
83
Id.
84
Id.
77
14
United has come from the Occupy movement, with activists all over the country lobbying and
rallying to make campaign finance a top political issue.85
The Supreme Court’s Reaffirmation of Citizens United
In 2012, the Supreme Court reaffirmed its Citizens United decision in American
Tradition Partnership, Inc. v. Bullock, 132 S. Ct. 2490 (2012). The plaintiffs in this case,
corporations wishing to make independent expenditures on behalf of 2012 candidates, sought
declaratory judgment against Montana’s ban on corporate expenditures “in connection with a
candidate or political committee that supports or opposes a candidate or political party.”86 In an
extremely short, two paragraph opinion by the same five Justices that made up the Citizens
United majority, the Court held that Montana’s arguments defending its corporate expenditure
ban were already rejected in Citizens United and that Citizens United’s rationale holds here as
well.87 Justice Breyer’s four-Justice dissent, joined by Justices Ginsburg, Sotomayor, and
Kagan, argued that not only did Montana’s law correctly address the appearance of corruption
with corporate expenditures, but also that Citizens United deserves to be reconsidered.88
Two More Campaign Finance Cases
McCutcheon v. FEC - Individual Campaign Contributions
85
Id.
86
American Tradition Partnership, Inc. v. Bullock, 132 S. Ct. at 2491 (2012), citing Mont. Code
Ann. § 13-35-227(1) (2011).
87
88
Id.
Id. at 2491-2492.
15
On Tuesday, Feb. 19, 2013, SCOTUS agreed to hear McCutcheon v. FEC.89 This is a
campaign finance case, and will likely be considered the most important campaign finance case
that the Court has heard since Citizens United. McCutcheon involves the federal aggregate limit
on the amount of money that an individual can contribute overall during a two-year election
cycle.
Shaun McCutcheon, a wealthy Alabamian, donated copious amounts of money to
Republican and conservative candidates and political party committees throughout the 20112012 election cycle.90 He filed suit, challenging the Federal Elections Campaigns Act’s (FECA)
individual aggregate contribution limits to candidates and political party committees, because he
wished to donate more money to Republican and conservative candidates and committees.91
McCutcheon’s claim was that FECA’s aggregate limits were unconstitutionally low and
unconstitutionally overbroad.92 The Republican National Committee (RNC), another plaintiff in
this case, also challenged FECA’s individual contribution limits because it would have liked to
receive contributions from such wealthy individuals.93
The DC Circuit court upheld FECA’s limits and found for the FEC.94 The court relied
heavily on Buckley, indicating that the government can justify its limits on individual
contributions to candidates and party committees as a means of preventing corruption or the
appearance of corruption.95 The court made it quite clear that “[i]t is not the judicial role to parse
89
Paul Blumenthal, Supreme Court Takes Campaign Finance Case, Will Rule on Contribution Limits,
http:// www.huffingtonpost.com/2013/02/19/supreme-court-campaign-finance_n_2717527.html (accessed
Feb. 20, 2013).
90
McCutcheon v. Federal Elections Com’n, 2012 WL 4466482 at 2 (D.D.C. 2012).
91
Id.
92
Id.
93
Id.
94
Id at 7.
95
Id at 4.
16
legislative judgment about what limits to impose.”96 The court also noted that, “[p]laintiffs raise
the troubling possibility that Citizens United undermined the entire contribution limits scheme,
but whether that case will ultimately spur a new evaluation of Buckley is a question for the
Supreme Court, not us.”97 Thus, while the DC Circuit court would uphold Buckley and FECA’s
individual contribution limits, it does set up the Supreme Court to possibly reevaluate Buckley.
As we have seen, the five-Justice conservative bloc of the Supreme Court is quite willing
to rip apart campaign finance laws; just look at Citizens United. Since the Court has agreed to
hear McCutcheon, the same five Justices that made up the majority in Citizens United could also
decimate Buckley, as they did to Austin in 2010. However, the Court did not explicitly state that
it would reconsider Buckley when it hears McCutcheon.98
U.S. v. Danielczyk – Direct Corporate Contributions
Another recent campaign finance case making its rounds through the courts is U.S. v.
Danielczyk, 683 F.3d 611 (4th Cir. 2012). This case deals with individuals conspiring to and
facilitating direct contributions to Hillary Clinton’s 2008 presidential campaign, violating 2
U.S.C. § 441b(a) of FECA and 18 U.S.C. § 2.99 As the facts of the case show, Danielczyk (and
another plaintiff, Biagi) hosted a fundraiser for then-Senator Hillary Clinton and asked
individuals to contribute to Clinton’s presidential campaign, with the promise that such donors
would be reimbursed by Danielczyk’s LLC, Galen.100 Danielczyk attempted to conceal such
promised reimbursements “by writing “consulting fees” on the reimbursement checks’
96
Id at 6.
Id at 7.
98
Lyle Denniston, Campaign Donation Issue Reopened, http://www.scotusblog.com/2013/02/campaigndonation-issue-reopened/ (accessed Feb. 20, 2013).
99
U.S. v. Danielczyk, 683 F.3d 611, 613 (4th Cir. 2012).
100
Id. at 614.
97
17
memorandum lines, by issuing checks for amounts larger than the actual contributions, and by
creating creating false back-dated letters to the individual donors that characterized the
reimbursement payments as “consulting fees.””101 From this scheme, Danielczyk was indicted
with “knowingly and willfully causing contributions of corporate money to a candidate for
federal office, aggregation $25,000 or more, in violation of § 441b(a).”102 Danielczyk moved to
dismiss that count, arguing that under Citizens United, § 441b(a) is unconstitutional as applied to
him.103
The district court, relying on Citizens United, held that § 441b(a)’s ban on direct
corporate contributions was unconstitutional, as applied to Galen, because the ban treats
individuals and corporations unequally.104 The district court rejected the Government’s
argument that Federal Election Commission v. Beaumont, 539 U.S. 146 (2003), where the
Supreme Court rejected an as-applied challenge to § 441b(a)’s ban on direct corporate
contributions, directly controlled the present case.105 The Court of Appeals, however, reversed
and held that Citizens United does not undermine Beaumont’s holding that § 441b(a)’s ban on
direct corporate contributions was constitutional.106
This is another case that the Supreme Court will likely hear in the near future. Because
of its direct question of whether Citizens United can undermine yet another aspect of campaign
finance, the five-Justice majority that made up Citizens United will likely anticipate hearing
Danielczyk. Danielczyk may prove to be crucially important regarding how the Constitution
101
Id.
Id.
103
Id.
104
Id.
105
Id. at 615.
106
Id.
102
18
treats corporations, even more than in strictly a campaign finance role, as a holding that strikes
down § 441b(a)’s ban on direct corporate contributions may further push the envelope toward
complete corporate personhood.
Citizens United and Corporate Personhood
Many opponents of Citizens United have called for restricting Citizens United to apply
strictly to First Amendment speech, thus limiting the possibility for extending corporation’s
rights and abilities as “persons.” However, it seems evident that the five-Justice majority of
Citizens United may want to extend corporations’ rights, including treatment as “person” under
the law. Justice Scalia’s concurrence can be read as feverishly favoring corporations as having
more rights, powers, and abilities than their charters originally intended. His concurrence
heavily focuses on the First Amendment only regulating “speech” and not “speakers.”107 Thus,
should Scalia’s rationale be accepted, then corporations may enjoy further constitutional
protections than previously thought.
The Future of Political Speech and Campaign Finance Limitations
Among the challenges that have been brought regarding political speech and campaign
finance, what seems to be one of the most crucial questions for many opponents of restrictions
and limitations is whether it is even constitutional for Congress to restrict or limit speech. The
District Court in McCutcheon left the question for Congress to decide, stating that “[i]t is not the
judicial role to parse legislative judgment about what limits to impose.”108 So far, the Court has
upheld Congress’s restrictions on contribution limitations as constitutional because they concern
107
108
Citizens United, 130 S.Ct. at 929.
McCutcheon, 2012 WL 4466482.
19
the First Amendment freedom of association rather than freedom of speech, and thus are subject
to a lower standard of scrutiny when challenged.109
Some attorneys and other professionals well-versed in campaign finance have expressed
some worry, though, about the Court’s potential attempt to legislate an area that should be left
for Congress. In a Washington Post article, Tara Malloy, senior counsel for the Campaign Legal
Center, stated that there are some justices “who are willing to usurp Congress’s role as legislator
when it comes to matter of campaign finance.”110 And in a Slate article on the Court’s decision
to hear McCutcheon, author David Weigel wrote that it is possible Kennedy will find
McCutcheon’s argument compelling, even as “baseless as it is.”111 Weigel also wrote, however,
that based on the political lean of the judge who decided McCutcheon in the District Court, the
outlook for the case once it hits the Supreme Court might fair better for proponents of campaign
finance restrictions. He called Judge Janice Rogers Brown, who decided the case, a “libertarianminded judge” and stated that “even she decided that ‘the aggregate limits are justified’” and that
McCutcheon’s argument challenging the provision “was flimsy.”112
Until the Supreme Court hears the case and issues a decision, it is unclear whether the
role of deciding restrictions and limitations for campaign contributions will be one for the
judiciary or for Congress. It is also unclear how narrowly the Court will decide the challenge.
But depending on how the Court rules, McCutcheon might not be the last challenge to campaign
finance the Court will face.
109
Id., referencing Buckley v. Valeo, 424 U.S. 1, 22 (1976).
Robert Barnes, Supreme Court to consider limits on individual political contributions, Wash. Post (Feb.
19, 2013).
111
David Weigel, Will McCutcheon v. FEC Allow Billionaires to Buy Elections? I Mean, More Than They
Currently Do?, Slate, (Feb. 19, 2013).
112
Id.
110
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There are two sets of contribution limits: base limits and aggregate limits. Base limits
regulate how much the contributor may give to specified categories of recipients, and aggregate
limits regulate the total amount an individual may contribute in any two-year election cycle.113
Because McCutcheon is only challenging the aggregate limits rather than both sets of
contribution limits, it is possible that another challenge could be made in the future on the base
limitations aspect of contribution limits. If the Court decides to uphold the aggregate limits in
the same way the District Court did, it is unlikely that a challenge to the base limits would be
successful. But if the Court overturns Buckley v. Valeo and finds that aggregate limitations are
unconstitutional, and the Court issues a narrow holding, it would make challenging the base
contribution limitations all that more appealing to opponents of campaign finance.
The Court could also revisit its Citizen United holding by hearing Danielczyk and make a
final determination of whether § 441b(a)’s ban on direct corporate contributions is constitutional.
Of course, this case should also signal a shift to support the case for complete corporate
personhood. Only time will tell where the Supreme Court will have its next great impact in the
realm of campaign finance, but it is extremely likely that somehow, corporations will be
involved.
113
McCutcheon, 2012 WL 4466482,
21