Citizens United Decision That Created “Super Pacs” May Be Reconsidered

The U.S. Supreme Court’s controversial decision in Citizens United v. Federal Election Commission, 558 U.S. 310 (2010) has taken quite a beating in recent weeks. The decision, which gave rise to the  “Super Pacs” has been criticized for giving corporations greater influence in political elections. Speaking at an Arkansas law school, retired Justice John Paul Stevens recently suggested that the Court might be having second thoughts about its corporate campaign finance reform ruling, to which he bitterly dissented.

The State of Montana believes that the Supreme Court erred as well. Its highest court refused to honor the Citizen’s United decision, citing Montana’s propensity for public corruption as justification for upholding a state campaign finance reform law banning political spending by corporations. The Supreme Court will decide whether to overturn the Montana ruling later this month.

To understand what is at stake, it is important to look back at the reasoning behind the Supreme Court’s decision.

The Bipartisan Campaign Reform Act of 2002 (BCRA) prohibited 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. 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.

In January 2008, Citizens United, a nonprofit corporation, released a documentary critical of then-Senator Hillary Clinton, a candidate for her party’s Presidential nomination. Concerned about possible civil and criminal penalties for violating federal law, it sought declaratory and injunctive relief, arguing the limits on corporate expenditures were unconstitutional.

To the surprise of many, the majority of the Supreme Court agreed in a 5-4 decision. The Court ultimately concluded that the First Amendment does not allow political speech restrictions simply based on a speaker’s corporate identity. “Corporations and other associations, like individuals, contribute to the ‘discussion, debate, and the dissemination of information and ideas’ that the First Amendment seeks to foster,” the majority opinion stated.

The Court confirmed the long-standing precedent that 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.” Using this standard, the Court rejected the government’s argument that the law was essential to prevent political corruption. As Justice Anthony Kennedy explained in the majority opinion, “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.”

The Supreme Court is scheduled to consider the lawsuit on June 14, according to the Court’s electronic docket. The Court has been asked to overturn the ruling, without briefing or argument. However, given its potential ramifications on future campaign finance reform, the Court could elect to grant review of the case for next term.