558 U.S. 310 (2010), 08-205, Citizens United v. Federal Election Commission

Docket Nº:08-205.
Citation:558 U.S. 310, 130 S.Ct. 876, 175 L.Ed.2d 753, 78 U.S.L.W. 4078
Opinion Judge:KENNEDY Justice
Party Name:CITIZENS UNITED, Appellant, v. FEDERAL ELECTION COMMISSION.
Attorney:Theodore B. Olson, for Appellant. Floyd Abrams, for Senator Mitch McConnell as amicus curiae, by special leave of the Court, supporting the Appellant. Elena Kagan, Solicitor General, Washington, D.C., for Respondent. Seth P. Waxman, for Senator John McCain, as amici curiae, by special leave of th...
Judge Panel: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 SOTOMAYOR, JJ., joined as to Part IV. ROBERTS, C. J., filed a concurring opinion, in which AL...
Case Date:January 21, 2010
Court:United States Supreme Court
 
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Page 310

558 U.S. 310 (2010)

130 S.Ct. 876, 175 L.Ed.2d 753, 78 U.S.L.W. 4078

CITIZENS UNITED, Appellant,

v.

FEDERAL ELECTION COMMISSION.

No. 08-205.

United States Supreme Court

January 21, 2010

Argued March 24, 2009

Reargued September 9, 2009

[175 L.Ed.2d 762] [130 S.Ct. 880] Syllabus[*]

As amended by §203 of the Bipartisan Campaign Reform Act of 2002 (BCRA), federal law prohibits corporations and unions from using their general [130 S.Ct. 881] 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 [175 L.Ed.2d 763] being held within 30 days," §100.29(b)(3)(ii). Corporations and unions may establish a political 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, 124 S.Ct. 619, 157 L.Ed.2d 491, 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, 110 S.Ct. 1391, 108 L.Ed.2d 652, that political speech may be banned based on the speaker's corporate identity.

In January 2008, appellant Citizens United, a nonprofit corpora­tion, released a documentary (hereinafter Hillary) critical of then-Senator Hillary Clinton, a candidate for her party's Presidential nomination. Anticipating that it would make Hillary available on cable television through video-on-demand within 30 days of primary elections, Citizens United produced television ads to run on broadcast and cable television. Concerned about possible civil and criminal penalties for violating §441b, it sought declaratory and injunctive re­lief, arguing that (1) §441b is unconstitutional as applied to Hillary; and (2) BCRA's disclaimer, disclosure, and reporting requirements, BCRA §§201 and 311, were unconstitutional as applied to Hillary and the ads. The District Court denied Citizens United a prelimi­nary injunction and granted appellee Federal Election Commission (FEC) summary judgment.

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Held:

1. Because the question whether §441b applies to Hillary cannot be resolved on other, narrower grounds without chilling political speech, this Court must consider the continuing effect of the speech suppres­sion upheld in Austin. Pp. 888-896, 175 L.Ed.2d, at 771-780.

(a) Citizens United's narrower arguments—that Hillary is not an "electioneering communication" covered by §441b because it is not "publicly distributed" under 11 CFR §100.29(a)(2); that §441b may not be applied to Hillary under Federal Election Comm'n v. Wisconsin Right to Life, Inc., 551 U.S. 449, 127 S.Ct. 2652, 168 L.Ed.2d 329 (WRTL), which found §441b uncon­stitutional as applied to speech that was not "express advocacy or its functional equivalent," id., at 481, 127 S.Ct. 2652, 168 L.Ed.2d 329 (opinion of ROBERTS, C. J.), determining that a communication "is the functional equivalent of express advocacy only if [it] is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate," id., at 469-470, 127 S.Ct. 2652, 168 L.Ed.2d 329 ; that §441b should be invalidated as applied to movies shown through video-on-demand because this delivery system has a lower risk of distorting the political process than do television ads; and that there should be an exception to §441b's ban for nonprofit corporate political speech funded overwhelming by individuals—are not sustainable under a fair reading of the statute. Pp. 888 - 892, 175 L.Ed.2d, at 771-775.

(b) Thus, this case cannot be resolved on a narrower ground without chilling [130 S.Ct. 882] political speech, speech that is central to the First Amendment's meaning and purpose. Citizens United did not waive this challenge to Austin when it stipulated to dismissing the facial challenge below, since (1) even if such a challenge could be waived, this Court may reconsider [175 L.Ed.2d 764] Austin and §441b's facial validity here be­cause the District Court "passed upon" the issue, Lebron v. National Railroad Passenger Corporation, 513 U.S. 374, 379, 115 S.Ct. 961, 130 L.Ed.2d 902; (2) throughout the litigation, Citizens United has asserted a claim that the FEC has violated its right to free speech; and (3) the parties cannot enter into a stipulation that prevents the Court from considering remedies nec­essary to resolve a claim that has been preserved. Because Citizens United's narrower arguments are not sustainable, this Court must, in an exercise of its judicial responsibility, consider §441b's facial valid­ity. Any other course would prolong the substantial, nationwide chilling effect caused by §441b's corporate expenditure ban. This conclusion is further supported by the following: (1) the uncertainty caused by the Government's litigating position; (2) substantial time would be required to clarify §441b's application on the points raised by the Government's position in order to avoid any chilling effect caused by an improper interpretation; and (3) because speech itself is of primary importance to the integrity of the election process, any speech arguably within the reach of rules created for regulating

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po­litical speech is chilled. The regulatory scheme at issue may not be a prior restraint in the strict sense. However, given its complexity and the deference courts show to administrative determinations, a speaker wishing to avoid criminal liability threats and the heavy costs of defending against FEC enforcement must ask a governmen­tal agency for prior permission to speak. The restrictions thus func­tion as the equivalent of a prior restraint, giving the FEC power analogous to the type of government practices that the First Amend­ment was drawn to prohibit. The ongoing chill on speech makes it necessary to invoke the earlier precedents that a statute that chills speech can and must be invalidated where its facial invalidity has been demonstrated. Pp. 892 - 896, 175 L.Ed.2d, at 775-780. 2. Austin is overruled, and thus provides no basis for allowing the Government to limit corporate independent expenditures. Hence, §441b's restrictions on such expenditures are invalid and cannot be applied to Hillary. Given this conclusion, the part of McConnell that upheld BCRA §203's extension of §441b's restrictions on independent corporate expenditures is also overruled. Pp. 896-914, 175 L.Ed.2d, at 780-799.

(a) Although the First Amendment provides that "Congress shall make no law . . . abridging the freedom of speech," §441b's prohibition on corporate independent expenditures is an outright ban on speech, backed by criminal sanctions. It is a ban notwithstanding the fact that a PAC created by a corporation can still speak, for a PAC is a separate association from the corporation. Because speech is an es­sential mechanism of democracy—it is the means to hold officials ac­countable to the people—political speech must prevail against laws that would suppress it by design or inadvertence. Laws burdening such 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." WRTL, 551 U.S., at 464, 127 S.Ct. 2652, 168 L.Ed.2d 329. This language provides a sufficient framework for protecting the interests in this case. Premised on [175 L.Ed.2d 765] mistrust of governmental power, the First Amendment stands against attempts to disfavor certain subjects or viewpoints or to distinguish among different speak­ers, which [130 S.Ct. 883] may be a means to control content. The Government may also commit a constitutional wrong when by law it identifies certain preferred speakers. There is no basis for the proposition that, in the political speech context, the Government may impose restrictions on certain disfavored speakers. Both history and logic lead to this con­clusion. Pp. 896 - 899, 175 L.Ed.2d, at 780-783.

(b) The Court has recognized that the First Amendment applies to corporations, e.g., First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 778, n. 14, 98 S.Ct. 1407, 55 L.Ed.2d 707, and extended this protection to the context of political speech, see, e.g., NAACP v. Button, 371 U.S. 415, 428-429, 83 S.Ct. 328, 9 L.Ed.2d 405. Addressing challenges to the Federal Election Campaign Act of 1971, the Buckley Court

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upheld limits on direct contributions to candidates, 18 U.S.C. §608(b), recognizing a governmental interest in preventing quid pro quo corruption. 424 U.S., at 25-26, 96 S.Ct. 612, 46 L.Ed.2d 659. However, the Court in­validated §608(e)'s expenditure ban, which applied to individuals, corporations, and unions, because it "fail[ed] to serve any substantial governmental interest in stemming the reality or appearance of cor­ruption in the electoral process," id., at 47-48, 96 S.Ct. 612, 46 L.Ed.2d 659. While Buckley did not consider a separate ban on corporate and union independent expendi­tures found in §610, had that provision been challenged in Buckley's wake, it could not have been squared with the precedent's reasoning and analysis. The Buckley Court did not invoke the overbreadth doc­trine to suggest that §608(e)'s expenditure ban would have been con­stitutional had it applied to corporations and...

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