Robbins: The legacy of Citizens United v Federal Election Commission

This is the sixth installment in an ongoing, occasional series on seminal cases in American law.

Plenty of folks still have heartburn over this one.

Decided in 2010, this landmark United States Supreme Court case concerned campaign finance and blood is still a-boil over it. Before we get to the gobsmack it delivered though, let’s first note who the players were.

The Federal Election Commission is an independent regulatory agency whose purpose is to enforce campaign finance law in United States federal elections. Created in 1974 through amendments to the Federal Election Campaign Act, the commission is made up of six members, who are appointed by the president and confirmed by the Senate. By law, no more than three commissioners can be members of the same political party, and at least four votes are required for any official commission action.

The commission’s role is limited to the administration of federal campaign finance laws. It enforces limitations and prohibitions on contributions and expenditures, administers the reporting system for campaign finance disclosure, investigates and prosecutes violations (typically initiated by complaints from other candidates, parties, watchdog groups, and the public), audits a limited number of campaigns and organizations for compliance, and administers the presidential public funding programs for presidential candidates.

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Citizens United was, and is, a conservative Public Action Committee in Washington, D.C.  While many people think of a PAC as synonymous for a lobbying group, that’s not quite right. Instead, a PAC, is a 527 (that is, nonprofit) organization that pools campaign contributions from members and donates those funds to campaigns for or against candidates, ballot initiatives, or legislation. At the federal level, an organization becomes a PAC when it receives or spends more than $1,000 for the purpose of influencing a federal election, and registers with the FEC.

It is the “pooling” aspect of a PAC that undergirded the decision in the case.

Citizens United was founded in 1988 by Floyd Brown, a longtime Washington political operative who received major funding from the Koch brothers, the industrialists who own one of the largest privately-owned companies in the United States. Unabashedly, the group promotes corporate interests, socially conservative causes and candidates who advance their goals which, it states, are “limited government, freedom of enterprise, strong families, and national sovereignty and security.”

History of the case

The clash came in 2009 and was ruled on by the court the following year.

In the 2008 election season, Citizens United sought to broadcast TV ads for a video-on-demand film criticizing presidential candidate Hilary Clinton.  Doing so, however, would have violated the 2002 Bipartisan Campaign Reform Act (known more commonly as the McCain–Feingold Act), which barred corporations and unions from paying for media that mentioned any candidate during the period immediately preceding an election.

Citizens United challenged the law, suing the Federal Election Commission (which, among its other tasks, sets campaign finance laws and election rules). The case made its way through the lower courts until an appeal was granted by the U.S. Supreme Court.

The ruling

In a 5 to 4 ruling, the Justices declared the government restriction on “independent” political spending by corporations and unions unconstitutional and determined that the anti-Clinton broadcast should have been allowed. The decision overturned a century’s old precedent allowing the government to regulate such spending.

In the majority opinion, Justice Anthony Kennedy advanced that McCain-Feingold’s prohibition against all independent expenditures by corporations and unions violated the First Amendment’s protection of free speech. The court overruled Austin v. Michigan Chamber of Commerce (1990), which had allowed different restrictions on speech-related spending based on corporate identity, as well as a portion of McConnell v. FEC (2003) that had restricted corporate spending on electioneering communications.

The aftermath

The ruling effectively freed labor unions and corporations to spend money on electioneering communications and to directly advocate for the election or defeat of candidates or political issues.

Essentially, corporations and labor unions — through their PACs and as regards their “voices” in federal elections — were the same as individuals.  They could promote, spend and advocate for whoever and whatever they chose.

In his dissenting opinion, Justice John Paul Stevens argued that the court’s ruling represented “a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self-government.”

To say the ruling in Citizens United was controversial is to understate it and there are those who attribute the widening schism in Washington at least in part to the decision. Senate Majority Leader Mitch McConnell has offered that the Citizens United represents, “an important step in the direction of restoring the First Amendment rights.”  On the other side of the breach, former President Obama has held that the decision, “gives the special interests and their lobbyists even more power in Washington.”

Whatever your opinion, the ruling had a major impact on campaign finance, allowing unlimited election spending by corporations and labor unions and fueling the rise of super PACs. As a direct outflow of the case, while campaign contributions from corporate or labor union treasuries remain illegal, they may now, nonetheless, sponsor PACs and provide financial support for their administration and fundraising.  

Citizens United changed the political landscape. Whether for the good or ill remains a raw wound of our political divide.

Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address,

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