Pronk Pops

The Pronk Pops Show 284, June 23, 2014, Story 1: IRS Scandal Update — IRS Archive Vault Hard Drives Exist and Have All The Emails Requested By Congress — Videos

Posted on June 23, 2014. Filed under: American History, Blogroll, Business, College, Communications, Computers, Constitutional Law, Crime, Economics, Education, Employment, Federal Government, Fiscal Policy, Government, Government Dependency, Government Spending, Hardware, History, IRS, Law, Obama, Philosophy, Photos, Politics, Regulation, Resources, Scandals, Security, Social Science, Tax Policy, Taxes, Terror, Videos, Wealth, Wisdom | Tags: 23 June 2014, America, Articles, Audio, Breaking News, Broadcasting, Capitalism, Charity, Citizenship, Clarity, Classical Liberalism, Collectivism, Commentary, Commitment, Communicate, Communication, Concise, Conspiracy, Convincing, Courage, Cover-up, Culture, Current Affairs, Current Events, Economic Growth, Economic Policy, Economics, Education, Email Archiving Vault Hard Drives, Emails, Evidence, Evil, Experience, Faith, Family, Federal Records Act, First, Fiscal Policy, Free Enterprise, Freedom, Freedom of Speech, Friends, Give It A Listen!, God, Good, Goodwill, Growth, Hope, Individualism, IRS Archive Vault Hard Drive Exist, IRS Scandal, John Koskinin, Knowledge, Liberty, Life, Lois Lerner, Love, Lovers of Liberty, Mark Levin, Mission Emails, Monetary Policy, MPEG3, News, Opinions, Oversight Committee, Peace, Photos, Podcasts, Political Philosophy, Politics, President Barack Obama, Prosperity, Radio, Raymond Thomas Pronk, Representative Republic, Republic, Resources, Respect, Rule of Law, Rule of Men, Show Notes, Talk Radio, The Pronk Pops Show, The Pronk Pops Show 284, Truth, Tyranny, U.S. Constitution, United States of America, Videos, Virtue, War, Ways and Means Committee, Wisdom |

The Pronk Pops Show Podcasts

Pronk Pops Show 284: June 23, 2014

Pronk Pops Show 283: June 20, 2014

Pronk Pops Show 282: June 19, 2014

Pronk Pops Show 281: June 17, 2014

Pronk Pops Show 280: June 16, 2014

Pronk Pops Show 279: June 13, 2014

Pronk Pops Show 278: June 12, 2014

Pronk Pops Show 277: June 11, 2014

Pronk Pops Show 276: June 10, 2014

Pronk Pops Show 275: June 9, 2014

Pronk Pops Show 274: June 6, 2014

Pronk Pops Show 273: June 5, 2014

Pronk Pops Show 272: June 4, 2014

Pronk Pops Show 271: June 2, 2014

Pronk Pops Show 270: May 30, 2014 

Pronk Pops Show 269: May 29, 2014

Pronk Pops Show 268: May 28, 2014

Pronk Pops Show 267: May 27, 2014

Pronk Pops Show 266: May 23, 2014

Pronk Pops Show 265: May 22, 2014

Pronk Pops Show 264: May 21, 2014

Pronk Pops Show 263: May 20, 2014

Pronk Pops Show 262: May 16, 2014

Pronk Pops Show 261: May 15, 2014

Pronk Pops Show 260: May 14, 2014

Pronk Pops Show 259: May 13, 2014

Pronk Pops Show 258: May 9, 2014

Pronk Pops Show 257: May 8, 2014

Pronk Pops Show 256: May 5, 2014

Pronk Pops Show 255: May 2, 2014

Pronk Pops Show 254: May 1, 2014

Pronk Pops Show 253: April 30, 2014

Pronk Pops Show 252: April 29, 2014

Pronk Pops Show 251: April 28, 2014

Pronk Pops Show 250: April 25, 2014

Pronk Pops Show 249: April 24, 2014

Pronk Pops Show 248: April 22, 2014

Pronk Pops Show 247: April 21, 2014

Pronk Pops Show 246: April 17, 2014

Pronk Pops Show 245: April 16, 2014

Pronk Pops Show 244: April 15, 2014

Pronk Pops Show 243: April 14, 2014

Pronk Pops Show 242: April 11, 2014

Pronk Pops Show 241: April 10, 2014

Pronk Pops Show 240: April 9, 2014

Pronk Pops Show 239: April 8, 2014

Pronk Pops Show 238: April 7, 2014

Pronk Pops Show 237: April 4, 2014

Pronk Pops Show 236: April 3, 2014

Pronk Pops Show 235: March 31, 2014

Pronk Pops Show 234: March 28, 2014

Pronk Pops Show 233: March 27, 2014

Pronk Pops Show 232: March 26, 2014

Pronk Pops Show 231: March 25, 2014

Pronk Pops Show 230: March 24, 2014

Pronk Pops Show 229: March 21, 2014

Pronk Pops Show 228: March 20, 2014

Pronk Pops Show 227: March 19, 2014

Pronk Pops Show 226: March 18, 2014

Pronk Pops Show 225: March 17, 2014

Pronk Pops Show 224: March 7, 2014

Pronk Pops Show 223: March 6, 2014

Pronk Pops Show 222: March 3, 2014

Story 1: IRS Scandal Update — IRS Archive Vault Hard Drives Exist and Have All The Emails Requested By Congress — Videos

IRS Scandal – IRS Chief Koskinen To Testify Before House Oversight CMTE – Happening Now

IRS commissioner to testify in missing email scandal

Jay Sekulow Spoke with Fox News: IRS Scandal & Missing Emails

Mica on IRS Obstruction-Lois Lerner’s Missing E-mails

FOX News — IRS Scandal

IRS Scandal – Lost IRS Email – Special Report All Star

IRS Scandal – Shapiro: The Obama Administration Works Like Like A Mafia Organization – Kelly File

IRS Scandal – Tale Of The Missing Emails – IRS Chief Faces Grilling On Capitol Hill – Journal

IT Experts: IRS Lies About Lost Emails

Mark Levin Calls Out GOP Over Incompetent IRS Investigation

Mark Levin Decimates IRS For Targeting Him, Reveals His Complaint Led To Investigation

Epic Mark Levin Show: The IRS Should be Politically Killed

IRS Scandal – Hard (Drive) To Believe – IRS Boss Stands By Vanished Emails Story – Fox & Friends

GOP Lawmakers Grill IRS Commissioner Over Missing Emails In Targeting Scandal – Huckabee – Cavuto

IRS Scandal IRS: Lerner’s Hard Drive Recycled After Glitch That Wiped Out Emails

IRS Scandal – Critics Accuse IRS Of A “Cover-Up” Amid Report Lerner Emails Are Lost – Forbes On Fox

IRS Scandal – House Lawmakers Demand Answers On Thousands Of Missing Emails From IRS Chief -The Five

‘Nobody Believes You’: Ryan Blasts IRS Head Over Lost Emails

‘Let Me Finish!’ GOP Rep. Dave Camp and IRS Commissioner’s Testy Exchange

IRS Commissioner Won’t Apologize For Lost Lerner E-mails

IRS Commissioner John Koskinen grilled by Rep. Kevin Brady

GASPS As IRS Commissioner Admits Missing Lois Lerner Hard Drive Was Melted Down

Paul Ryan blasts IRS commissioner: ‘I don’t believe you’

IRS Scandal – IRS Official Whose Emails ‘Vanished’ Was Frequent White House Visitor – Kelly File

Judge Jeanine Pirro How High Will IRS Scandal Go? New Testimony Links Targeting To DC!

Judge Jeanine Pirro – Trey Gowdy – IRS Targeting Investigation Lois Lerner Emails Expose I

Is The IRS Scandal The Most Dangerous In U.S. History? – Herman Cain – Stuart Varney

FBI Officials There Is No Evidence To Warrant Charges In IRS Scandal Stuart Varney

IRS Scandal Debated by Fox News Sunday Panel with Chris Wallace

$1 Million Reward on IRS Scandal Whistleblower Offered

Ted Cruz Warns That Dems Are Moving To ‘Repeal’ The First Amendment

Sen. Roberts to Harry Reid: First Amendment Can’t be Amended to Stifle Critics

Supreme Court Changes the Campaign Finance Game

What Citizens United Didn’t Say

Obama’s SOTU Citizens United LIE explained

Explaining the Supreme Court on Campaign Finance

Citizens United (Hillary: the Movie) v. Federal Election Commission

Campaign Finance Reform and the Citizens United Supreme Court Decision

What You Probably Haven’t Heard About Citizens United

3 Reasons Not To Sweat The “Citizens United” SCOTUS Ruling

SCOTUS Decision Aided Santorum, Campaign Finance Expert Says

Campaign Finance: Lawyers’ Citizens United v. FEC U.S. Supreme Court Arguments (2009)

IRS Scandal – Sen. Carl Levin Pressured the IRS to Break the Law

Mark Levin: Democrat Senator Should Be Brought Before a Grand Jury for Role in IRS Scandal

IRS Under Fire The Origins Of A Political Scandal – Is The Obama Admin Corrupt? – Wake Up America

Investigate Senate Democrat Carl Levin

Breitbart.Com Contributor Joel Griffith on the IRS Scandal and Smoking Gun Emails

IRS Scandal – The IRS Has Delayed Releasing Documents Six Times Already – The Kelly File

March 26, 2014

Rep. Gowdy Questions IRS Commissioner John Koskinen about IRS Targeting Scandal

[WATCH] IRS Commisioner says it will “take years” to prOduce Lois Lerner emails and documents

IRS Scandal – IT: Jimmy Hoffa Is Hard To Find, Not Lois Lerner’s Emails – The Real Story

Ellison Barber: Lois Lerner’s Lost Emails ‘Doesn’t Make Sense’

Goldberg: Missing Lois Lerner Emails Are ‘Justifiable Red Meat’ for Republican Investigators

Why Archive Email?

What is email archiving and why is it important?

Office 365 and Exchange Online Archiving and Compliance

Symantec Enterprise Vault.cloud Archiving Demo

Data Workflows in E-Mail Archiving using Symantec Enterprise Vault and Dell Storage

Introduction to Symantec Managed Enterprise Vault

Symantec Tales from the Vault: Introducing Enterprise Vault 11

Symantec Tales from the Vault: Using Mail Connect to Streamline Archive Access

Understanding email servers and clients

How your email server works

Beck-Napolitano – The Right To Be Left Alone

5 Questions: IRS chief meets Congress over computer crash

Read more: http://www.politico.com/story/2014/06/irs-chief-congress-computer-crash-108089.html#ixzz35DKIDctt

Darrell Issa calls White House attorney on IRS email loss

House Oversight Chairman Darrell Issa is hauling in a former IRS counsel-turned-White House attorney to testify on the disappeared Lois Lerner emails.

The California Republican on Thursday evening requested Jennifer O’Connor of the White House Counsel’s office to testify on Tuesday morning about her knowledge of the crashed hard drive of ex-IRS tax exempt chief Lerner. The IRS says the crash erased two years’ worth of Lerner’s emails just when the IRS was beginning to pull conservative social welfare groups for additional scrutiny.

O’Connor was hired on at the IRS from May 2013 to November 2013 to serve as counselor to Acting IRS Commissioner Danny Werfel. One of her primary duties was to help the IRS respond to congressional inquiries after the tea party-targeting controversy came to light. And IRS chief counsel William Wilkins told the panel during its IRS probe that O’Connor was one of two people supervising the collection of “documents relating to the committee’s requests for material.”

Oversight Republicans had requested Lerner’s emails.

Issa suspects O’Connor, a former partner at D.C.’s WilmerHale, may have known about the missing Lerner emails.

“Given your prominent role in supervising the IRS’s document review and production processes, you likely knew or should have known that the IRS was missing a portion of e-mails sent or received by Ms. Lerner responsive to the Committee’s subpoena,” Issa said in a statement.

O’Connor specializes in responding to congressional investigations and was also detailed to help out the Health and Human Services Department following the botch Obamacare roll out in the early winter of last year. She headed to the White House earlier this year, according to the panel.

IRS Commissioner John Koskinen, who will appear before House Ways and Means Friday morning in the first hearing on the email controversy, will also sit in Issa’s hot seat just a few hours before O’Connor on Monday night.

The hearings come just days after the IRS told lawmakers that all Lerner’s emails between January 2009 and April 2011 were lost in a computer crash in mid-2011. The defunct hard drive was also thrown out as per IRS procedure, sources say. Ways and Means said six additional people involved in the sandal have also had emails lost since the IRS at the time did not back up email.

http://www.politico.com/story/2014/06/darrell-issa-white-house-attorney-irs-email-loss-108099.html

 

 

IRS Has Lost More E-mails . . .

 Lists created from a databaseMembership for these lists is determined by specifying certain criteria within a database (such as TAPS or TIMIS) and populating the list with names meeting the criteria. Changes to membership cannot be made directly to the list, but must be made to information contained in the database. The SB/SE all-employee list (&SBSE All) is an example.

 

President Wrong on Citizens United Case

Tonight the president engaged in demogoguery of the worst kind, when he claimed that last week’s Supreme Court decision in Citizens United v. FEC, “open[ed] the floodgates for special interests — including foreign corporations — to spend without limit in our elections. Well I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities.”

The president’s statement is false.

The Court held that 2 U.S.C. Section 441a, which prohibits all corporate political spending, is unconstitutional. Foreign nationals, specifically defined to include foreign corporations, are prohibiting from making “a contribution or donation of money or ather thing of value, or to make an express or implied promise to make a contribution or donation, in connection with a Federal, State or local election” under 2 U.S.C. Section 441e, which was not at issue in the case. Foreign corporations are also prohibited, under 2 U.S.C. 441e, from making any contribution or donation to any committee of any political party, and they prohibited from making any “expenditure, independent expenditure, or disbursement for an electioneering communication.”

This is either blithering ignorance of the law or demagoguery of the worst kind.

http://www.nationalreview.com/corner/193894/president-wrong-i-citizens-united-i-case/bradley-smith

 

 – Bradley A. Smith is Josiah H. Blackmore II/Shirley M. Nault Designated Professor of Law at Capital University Law School

Citizens United v. Federal Election Commission

Citizens United v. Federal Election Commission, 558 U.S. ___ (2010), (Docket No. 08-205), is a US constitutional law case. The United States Supreme Court held that the First Amendment prohibits the government from restricting political independent expenditures by corporations, associations, or labor unions. This followed a line of decisions starting with Buckley v. Valeo, 424 U.S. 1 (1976) interpreting freedom of speech to include spending money. The case has remained intensely controversial for increasing the influence in elections that money can have, in contrast to most other developed countries where limits are imposed on all election spending.

In the case, the conservative lobbying group Citizens United wanted to air a film critical of Hillary Clinton and to advertise the film during television broadcasts in apparent violation of the 2002 Bipartisan Campaign Reform Act (commonly known as the McCain–Feingold Act or “BCRA”).^[2] Section 203 of BCRA defined an “electioneering communication” as a broadcast, cable, or satellite communication that mentioned a candidate within 60 days of a general election or 30 days of a primary, and prohibited such expenditures by corporations and unions. The United States District Court for the District of Columbia held that §203 of BCRA applied and prohibited Citizens United from advertising the film Hillary: The Movie in broadcasts or paying to have it shown on television within 30 days of the 2008 Democratic primaries.^[1][3] The Supreme Court reversed this decision, striking down those provisions of BCRA that prohibited corporations (including nonprofit corporations) and unions from making independent expenditures and “electioneering communications”.^[2] The majority decision overruled Austin v. Michigan Chamber of Commerce (1990) and partially overruled McConnell v. Federal Election Commission (2003).^[4] The Court, however, upheld requirements for public disclosure by sponsors of advertisements (BCRA §201 and §311). The case did not involve the federal ban on direct contributions from corporations or unions to candidate campaigns or political parties, which remain illegal in races for federal office.^[5]

 

 

Background

The Bipartisan Campaign Reform Act of 2002 (known as BCRA or McCain–Feingold Act)—specifically §203, which modified the Federal Election Campaign Act of 1971, 2 U.S.C. § 441b—prohibited corporations and unions from using their general treasury to fund “electioneering communications” (broadcast advertisements mentioning a candidate) within 30 days before a primary or 60 days before a general election. During the 2004 presidential campaign, a conservative nonprofit 501(c)(4) organization named Citizens United filed a complaint before the Federal Election Commission (FEC) charging that advertisements for Michael Moore’sfilm Fahrenheit 9/11, a documentary critical of the Bush administration’s response to the terrorist attacks on September 11, 2001, constituted political advertising and thus could not be aired within the 30 days before a primary election or 60 days before a general election. The FEC dismissed the complaint after finding no evidence that broadcast advertisements for the movie and featuring a candidate within the proscribed time limits had actually been made.^[6] The FEC later dismissed a second complaint which argued that the movie itself constituted illegal corporate spending advocating the election or defeat of a candidate, which was illegal under the Taft-Hartley Act of 1947 and the Federal Election Campaign Act Amendments of 1974. In dismissing that complaint, the FEC found that:

The complainant alleged that the release and distribution of FAHRENHEIT 9/11 constituted an independent expenditure because the film expressly advocated the defeat of President Bush and that by being fully or partially responsible for the film’s release, Michael Moore and other entities associated with the film made excessive and/or prohibited contributions to unidentified candidates. The Commission found no reason to believe the respondents violated the Act because the film, associated trailers and website represented bona fide commercial activity, not “contributions” or “expenditures” as defined by the Federal Election Campaign Act.^[7]

In the wake of these decisions, Citizens United sought to establish itself as a bona fide commercial film maker, producing several documentary films between 2005 and 2007. By early 2008, it sought to run television commercials to promote its latest political documentary Hillary: The Movie and to air the movie on DirecTV.^[8] The movie was highly critical of then-Senator Hillary Clinton, with the District Court describing the movie as an elongated version of a negative 30-second television spot. In January 2008, the United States District Court for the District of Columbia ruled that the television advertisements for Hillary: The Movie violated the BCRA restrictions of “electioneering communications” within 30 days of a primary. Though the political action committee claimed that the film was fact-based and nonpartisan, the lower court found that the film had no purpose other than to discredit Clinton’s candidacy for president.^[9] The Supreme Court docketed the case on August 18, 2008,^[10] and heard oral argument on March 24, 2009.^[8][11][12]

Before the Supreme Court

During the original oral argument, Deputy Solicitor General Malcolm L. Stewart (representing the FEC) argued that under Austin v. Michigan Chamber of Commerce, the government would have the power to ban books if those books contained even one sentence expressly advocating the election or defeat of a candidate and were published or distributed by a corporation or union.^[13] In response to this line of questioning, Stewart further argued that under Austin the government could ban the digital distribution of political books over the Amazon Kindle or prevent a union from hiring a writer to author a political book.^[14]

According to a 2012 article in The New Yorker by Jeffrey Toobin, the Court expected after oral argument to rule on the narrow question that had originally been presented: could Citizens United show the film? At the subsequent conference among the justices after oral argument, the vote was 5–4 in favor of Citizens United being allowed to show the film. The justices voted the same as they had in Federal Election Commission v. Wisconsin Right to Life, Inc., a similar 2007 case, with Chief Justice Roberts and Justices Scalia, Kennedy, Thomas and Alito in the majority.^[15]

Chief Justice John Roberts, per the privilege of that office when in the majority, was in charge of assigning the majority opinion, and chose to do it himself. His opinion restricted itself narrowly, holding that the BCRA allowed the showing of the film. A draft concurrence by Kennedy argued that the court could and should have gone much further. The other justices in the majority began agreeing with Kennedy, and convinced Roberts to reassign the writing and allow Kennedy’s concurrence to instead become the majority opinion.^[15]

On the other side, John Paul Stevens, the most senior justice in the minority, assigned the dissent to David Souter, who announced his retirement from the Court while he was working on it. The final draft went beyond critiquing the majority. Toobin described it as “air[ing] some of the Court’s dirty laundry,” writing that Souter’s dissent accused Roberts of having manipulated Court procedures to reach his desired result—an expansive decision that, Souter claimed, changed decades of election law and ruled on issues neither party to the litigation had presented.^[15]

According to Toobin, Roberts was concerned that Souter’s dissent, likely to be his last opinion for the Court, could “damage the Court’s credibility.” He agreed with the minority to withdraw the opinion and schedule the case for reargument. However, when he did, the “Questions Presented” to the parties were more expansive, touching on the issues Kennedy had identified. According to Toobin, the eventual result was therefore a foregone conclusion from that point on, because the same majority had supported it.^[15] Toobin’s account has been criticized for drawing conclusions unsupported by the evidence in his article.^[16]

On June 29, 2009, the last day of the term, the Court issued an order directing the parties to re-argue the case on September 9 after briefing whether it might be necessary to overrule Austin and/or McConnell v. Federal Election Commission to decide the case.^[17] Justice Stevens noted in his dissent that in its prior motion for summary judgment Citizens United had abandoned its facial challenge of BCRA §203, with the parties agreeing to the dismissal of the claim.^[18]

Justice Sotomayor sat on the bench for the first time during the second round of oral arguments. This was the first case argued by then-Solicitor General and future Supreme Court Justice Elena Kagan. Former Bush Solicitor General Ted Olson and First Amendment lawyer Floyd Abrams argued for Citizens United, and former Clinton Solicitor General Seth Waxman defended the statute on behalf of various supporters.^[19] Legal scholar Erwin Chemerinsky called it “one of the most important First Amendment cases in years”.^[20]

Opinions of the Court

Overview

The Supreme Court held in Citizens United that it was unconstitutional to ban free speech through the limitation of independent communications by corporations, associations, and unions,^[21] i.e. that corporations and labor unions may spend their own money to support or oppose political candidates through independent communications like television advertisements.^[22] This ruling was frequently interpreted as permitting corporations and unions to donate to political campaigns,^[23] or else removing limits on how much a donor can contribute to a campaign.^[24] However, these claims are incorrect, as the ruling did not affect the 1907 Tillman Act‘s ban on corporate campaign donations (as the Court noted explicitly in its decision^[25]), nor the prohibition on foreign corporate donations to American campaigns,^[26] nor did it concern campaign contribution limits.^[27] The Citizens United decision did not disturb prohibitions on corporate contributions to candidates, and it did not address whether the government could regulate contributions to groups that make independent expenditures.^[22] The Citizens United ruling did however remove the previous ban on corporations and organizations using their treasury funds for direct advocacy. These groups were freed to expressly endorse or call to vote for or against specific candidates, actions that were previously prohibited.^[28]

The majority opinion, written by Justice Kennedy, was relatively short, less than 30 pages; the dissenting opinions of Justices Kennedy and Scalia in Austin v. Michigan State Chamber of Commerce and McConnell v. Federal Election Commission actually provide a more complete picture of the majority’s thinking, in many respects. Chief Justice Roberts wrote a concurring opinion to address concerns about stare decisis, andJustice Scalia wrote a concurring opinion about the history and meaning of the First Amendment. Justice Thomas wrote separately to announce his disagreement with the majority’s decision not to strike down the mandatory disclosure requirements in BCRA. Justice Stevens wrote a lengthy dissent to analyze the development of First Amendment doctrine and campaign finance restrictions and to rebut the arguments of the majority and concurring opinions.

Majority opinion

Justice Kennedy’s majority opinion^[29] found that the BCRA §203 prohibition of all independent expenditures by corporations and unions violated the First Amendment’s protection of free speech. The majority wrote, “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.”^[30]

Justice Kennedy’s opinion for the majority also noted that because the First Amendment (and the Court) does not distinguish between media and other corporations, these restrictions would allow Congress to suppress political speech in newspapers, books, television, and blogs.^[2] The Court overruled Austin, which had held that a state law that prohibited corporations from using treasury money to support or oppose candidates in elections did not violate the First and Fourteenth Amendments. The Court also overruled that portion of McConnell that upheld BCRA’s restriction of corporate spending on “electioneering communications”. The Court’s ruling effectively freed corporations and unions to spend money both on “electioneering communications” and to directly advocate for the election or defeat of candidates (although not to contribute directly to candidates or political parties).

The majority argued that the First Amendment protects associations of individuals in addition to individual speakers, and further that the First Amendment does not allow prohibitions of speech based on the identity of the speaker. Corporations, as associations of individuals, therefore have speech rights under the First Amendment. Because spending money is essential to disseminating speech, as established in Buckley v. Valeo, limiting a corporation’s ability to spend money is unconstitutional because it limits the ability of its members to associate effectively and to speak on political issues.

The majority overruled Austin because that decision allowed different restrictions on speech-related spending based on corporate identity. Additionally, the majority argued that Austin was based on an “equality” rationale – trying to equalize speech between different speakers – that the Court had previously rejected as illegitimate under the First Amendment in Buckley. The Michigan statute at issue inAustin had distinguished between corporate and union spending, prohibiting the former while allowing the latter. The Austin Court, over vigorous dissent by Justices Scalia, Kennedy, and Sandra Day O’Connor, had held that such distinctions were within the legislature’s prerogative. In Citizens United v. Federal Election Commission, however, the majority argued that the First Amendment purposefully keeps the government from interfering in the “marketplace of ideas” and “rationing” speech, and it is not up to the legislatures or the courts to create a sense of “fairness” by restricting speech.^[29]

The majority also criticized Austin’s reasoning that the “distorting effect” of large corporate expenditures constituted a risk of corruption or the appearance of corruption. Rather, the majority argued that the government had no place in determining whether large expenditures distorted an audience’s perceptions, and that the type of “corruption” that might justify government controls on spending for speech had to relate to some form of “quid pro quo” transaction: “There is no such thing as too much speech.”^[29] The public has a right to have access to all information and to determine the reliability and importance of the information. Additionally, the majority did not believe that reliable evidence substantiated the risk of corruption or the appearance of corruption, and so this rationale did not satisfy strict scrutiny.

The majority opinion relied heavily on the reasoning and principles of the landmark campaign finance case of Buckley and First National Bank of Boston v. Bellotti, in which the Court struck down a broad prohibition against independent expenditures by corporations in ballot initiatives and referenda.^[29] Specifically, the majority echoed Bellotti’s rejection of categories based on a corporation’s purpose. The majority argued that to grant First Amendment protections to media corporations but not others presented a host of problems, and so all corporations should be equally protected from expenditure restrictions.

The Court found that BCRA §§201 and 311, provisions requiring disclosure of the funder, were valid as applied to the movie advertisements and to the movie itself.^[29]

Concurrences

Chief Justice Roberts, with whom Justice Alito joined, wrote separately “to address the important principles of judicial restraint and stare decisis implicated in this case”.^[31]

Roberts wrote to further explain and defend the main opinion’s statement that “there is a difference between judicial restraint and judicial abdication.” Roberts explained why the Court must sometimes overrule prior decisions. Had prior Courts never gone against stare decisis, for example, “segregation would be legal, minimum wage laws would be unconstitutional, and the Government could wiretap ordinary criminal suspects without first obtaining warrants”. Roberts’ concurrence recited a plethora of case law in which the court had ruled against precedent. Ultimately, Roberts argued that “stare decisis…counsels deference to past mistakes, but provides no justification for making new ones”.^[31]

Justice Scalia joined the opinion of the Court, but also wrote a concurring opinion which was joined by Justice Alito in full and by Justice Thomas in part. Scalia addressed Justice Stevens‘ dissent, specifically with regard to the original understanding of the First Amendment. Scalia stated that Stevens’ dissent was “in splendid isolation from the text of the First Amendment…It never shows why ‘the freedom of speech’ that was the right of Englishmen did not include the freedom to speak in association with other individuals, including association in the corporate form.” He further considered the dissent’s exploration of the Framers’ views about the “role of corporations in society” to be misleading, and even if valid, irrelevant to the text. Scalia principally argued that the First Amendment was written in “terms of speech, not speakers” and that “Its text offers no foothold for excluding any category of speaker.”^[32] Scalia argued that the Free Press clause was originally intended to protect the distribution of written materials and did not only apply to the media specifically. This understanding supported the majority’s contention that the Constitution does not allow the Court to separate corporations into media and non-media categories.^[29]

Justice Thomas wrote a separate opinion concurring in all but the upholding of the disclosure provisions. In order to protect the anonymity of contributors to organizations exercising free speech, Thomas would have struck down the reporting requirements of BCRA §201 and §311 as well, rather than allowing them to be challenged only on a case-specific basis. Thomas’s primary argument was that anonymous free speech is protected and that making contributor lists public makes the contributors vulnerable to retaliation, citing instances of retaliation against contributors to both sides of a then recent California voter initiative. Thomas also expressed concern that such retaliation could extend to retaliation by elected officials. Thomas did not consider “as-applied challenges” to be sufficient to protect against the threat of retaliation.^[33]

Dissent

A dissenting opinion by Justice Stevens^[34] was joined by Justice Ginsburg, Justice Breyer, and Justice Sotomayor. To emphasize his unhappiness with the majority, Stevens read part of his 90 page dissent from the bench.^[35] Stevens concurred in the Court’s decision to sustain BCRA’s disclosure provisions, but dissented from the principal holding of the majority opinion. The dissent argued that the Court’s ruling “threatens to undermine the integrity of elected institutions across the Nation. The path it has taken to reach its outcome will, I fear, do damage to this institution.” He wrote: “A democracy cannot function effectively when its constituent members believe laws are being bought and sold.”

Justice Stevens also argued that the Court addressed a question not raised by the litigants when it found BCRA §203 to be facially unconstitutional, and that the majority “changed the case to give themselves an opportunity to change the law”.^[29] He argued that the majority had expanded the scope beyond the questions presented by the appellant and that therefore a sufficient record for judging the case did not exist. Stevens argued that at a minimum the Court should have remanded the case for a fact-finding hearing, and that the majority did not consider other compilations of data, such as the Congressional record for justifying BCRA §203.

Stevens referenced a number of major First Amendment cases to argue that the Court had long recognized that to deny Congress the power to safeguard against “the improper use of money to influence the result [of an election] is to deny to the nation in a vital particular the power of self protection”.^[36] After recognizing that in Buckley v. Valeo the Court had struck down portions of a broad prohibition of independent expenditures from any sources, Stevens argued that nevertheless Buckley recognized the legitimacy of “prophylactic” measures for limiting campaign spending and found the prevention of “corruption” to be a reasonable goal for legislation. Consequently, Stevens argued that Buckley left the door open for carefully tailored future regulation.^[29] Although the majority echoed many of the arguments in First National Bank of Boston v. Bellotti, Stevens argued that the majority opinion contradicted the reasoning of other campaign finance cases – in particular, Austin v. Michigan State Chamber of Commerce and McConnell v. Federal Election Commission – and found it telling that the majority, when citing such cases, referenced mainly dissenting opinions.

Stevens’ lengthy dissent specifically sought to address a number of the majority’s central arguments:

First, Stevens argued that the majority failed to recognize the possibility for corruption outside of strict quid pro quo exchanges. Stevens referenced facts from a previous BCRA challenge to argue that, even if the exchange of votes for expenditures could not be shown, contributors gain favorable political access from such expenditures.^[29] The majority considered access to be insufficient justification for limiting speech rights.

Stevens, however, argued that in the past, even when striking down a ban on corporate independent expenditures, the Court “never suggested that such quid pro quo debts must take the form of outright vote buying or bribes” (Bellotti). Buckley, he claimed, also acknowledged that large independent expenditures present the same dangers as quid pro quo arrangements, although Buckley struck down limits on such independent expenditures. Using the record from a previous BCRA §203 challenge, he argued that independent expenditures were sometimes a factor in gaining political access and concluded that large independent expenditures generate more influence than direct campaign contributions.^[29] Furthermore, Stevens argued that corporations could threaten Representatives and Senators with negative advertising to gain unprecedented leverage. Stevens supported his argument by citing Caperton v. A.T. Massey Coal Co.,^[37] where the Court held that $3 million in independent expenditures in a judicial race raised sufficient questions about a judge’s impartiality to require the judge to recuse himself in a future case involving the spender. Stevens argued that it was contradictory for the majority to ignore the same risks in legislative and executive elections, and argued that the majority opinion would exacerbate the problem presented in Caperton because of the number of states with judicial elections and increased spending in judicial races.

Second, Stevens argued that the majority did not place enough emphasis on the need to prevent the “appearance of corruption” in elections. Earlier cases, including Buckley and Bellotti, recognized the importance of public confidence in democracy. Stevens cited recent data indicating that 80% of the public view corporate independent expenditures as a method used to gain unfair legislative access.^[29] Stevens predicted that if the public believes that corporations dominate elections, disaffected voters will stop participating.

Third, Stevens argued that the majority’s decision failed to recognize the dangers of the corporate form. Austin held that the prevention of corruption, including the distorting influence of a dominant funding source, was a sufficient reason for regulating corporate independent expenditures. In defending Austin, Stevens argued that the unique qualities of corporations and other artificial legal entities made them dangerous to democratic elections. These legal entities, he argued, have perpetual life, the ability to amass large sums of money, limited liability, no ability to vote, no morality, no purpose outside of profit-making, and no loyalty. Therefore, he argued, the courts should permit legislatures to regulate corporate participation in the political process.

Legal entities, Stevens wrote, are not “We the People” for whom our Constitution was established.^[29] Therefore, he argued, they should not be given speech protections under the First Amendment. The First Amendment, he argued, protects individual self-expression, self-realization and the communication of ideas. Corporate spending is the “furthest from the core of political expression” protected by the Constitution, he argued, citing Federal Election Commission v. Beaumont,^[38] and corporate spending on politics should be viewed as a business transaction designed by the officers or the boards of directors for no purpose other than profit-making. Stevens called corporate spending “more transactional than ideological”. Stevens also pointed out that any member of a corporation may spend personal money on promoting a campaign because BCRA only prohibited the use of general treasury money.

Fourth, Stevens attacked the majority’s central argument: that the prohibition of spending guards free speech and allows the general public to receive all available information. Relying on Austin, Stevens argued that corporations “unfairly influence” the electoral process with vast sums of money that few individuals can match, which distorts the public debate. Because a typical voter can only absorb so much information during a relevant election period, Stevens described “unfair corporate influence” as the potential to outspend others, to push others out of prime broadcasting spots and to dominate the “marketplace of ideas”.^[29] This process, he argued, puts disproportionate focus on this speech and gives the impression of widespread support regardless of actual support. Thus, this process marginalizes the speech of other individuals and groups.

Stevens referred to the majority’s argument that “there is no such thing as too much speech” as “facile” and a “straw man” argument. He called it an incorrect statement of First Amendment law because the Court recognizes numerous exceptions to free speech, such as fighting words, obscenity restrictions, time, place and manner restrictions, etc. Throughout the dissent, Stevens argued that the majority’s “slogan” ignored the possibility that too much speech from one source could “drown out” other points of view.

Fifth, Stevens criticized the majority’s fear that the government could use BCRA §203 to censor the media. The focus placed on this hypothetical fear made no sense to Stevens because it did not relate to the facts of this case—if the government actually attempted to apply BCRA §203 to the media (and assuming that Citizens United could not constitute “media”), the Court could deal with the problem at that time. Stevens described the majority’s supposed protection of the media as nothing more than posturing. According to Stevens, it was the majority’s new rule, announced in this case, that prohibited a law from distinguishing between “speakers” or funding sources. This new rule would be the only reason why media corporations could not be exempted from BCRA §203. In this, Stevens and the majority conceptualize the First Amendment’s protection of “the press” quite differently. Stevens argues that the “Press” is an entity, which can be distinguished from other persons and entities which are not “press”. The majority opinion viewed “freedom of the press” as an activity, applicable to all citizens or groups of citizens seeking to publish views.

Sixth, Stevens claimed that the majority failed to give proper deference to the legislature. Stevens predicted that this ruling would restrict the ability of the states to experiment with different methods for decreasing corruption in elections. According to Stevens, this ruling virtually ended those efforts, “declaring by fiat” that people will not “lose faith in our democracy”.^[29] Because of the complex interrelated interests at stake, Stevens found this an undesirable area of law for black-and-white rules. Stevens argued that the majority’s view of a self-serving legislature, passing campaign-spending laws to gain an advantage in retaining a seat, coupled with “strict scrutiny” of laws, would make it difficult for any campaign finance regulation to be upheld in future cases.

Seventh, Stevens argued that the majority opinion ignored the rights of shareholders. A series of cases protects individuals from legally compelled payment of union dues to support political speech.^[39] Because shareholders invest money in corporations, Stevens argued that the law should likewise help to protect shareholders from funding speech that they oppose. The majority, however, argued that ownership of corporate stock was voluntary, and that unhappy shareholders could simply sell off their shares if they did not agree with the corporation’s speech. Stevens also argued that Political Action Committees (PACs), which allow individual members of a corporation to invest money in a separate fund, are an adequate substitute for general corporate speech and better protect shareholder rights. The majority, by contrast, had argued that most corporations are too small and lack the resources and raw number of shareholders and management staff necessary to cover the compliance, accounting, and administrative costs of maintaining a PAC. In this dispute, the opposing views essentially discussed differing types of entities: Stevens focused his argument on large, publicly held corporations, while the justices in the majority, and particularly Justice Scalia’s concurring opinion, placed an emphasis on small, closely held corporations and non-profits.

Stevens called the majority’s faith in “corporate democracy” an unrealistic method for a shareholder to oppose political funding. A derivative suit is slow, inefficient, risky and potentially expensive. Likewise, shareholder meetings only happen a few times a year, not prior to every decision or transaction. Rather, the officers and boards control the day-to-day spending, including political spending. According to Stevens, the shareholders have few options, giving them “virtually nonexistent” recourse for opposing a corporation’s political spending.^[29] Furthermore, most shareholders use investment intermediaries, such as mutual funds or pensions, and by the time a shareholder may find out about a corporation’s political spending and try to object, the damage is done and the shareholder has funded disfavored speech.

Stevens concluded his dissent:

At bottom, the Court’s opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.

^[30]

Correspondingly, Stevens and the other dissenting justices would have upheld the constitutionality of BCRA §203 and its restriction against advertising and broadcasting “Hillary: The Movie” within 30 days of the primary election on the grounds that the movie was produced and distributed by a corporate entity.

Subsequent developments

There was a wide range of reactions to the case from politicians, academics, attorneys, advocacy groups and journalists.

Support

Politicians

Senate Republican leader Mitch McConnell, who attended the announcement of the ruling, said the court “struck a blow for the First Amendment”.^[40]

Republican campaign consultant Ed Rollins opined that the decision adds transparency to the election process and will make it more competitive.^[41]

Advocacy groups

Citizens United, the group filing the lawsuit said, “Today’s U.S. Supreme Court decision allowing Citizens United to air its documentary films and advertisements is a tremendous victory, not only for Citizens United but for every American who desires to participate in the political process.”^[42] During litigation, Citizens United had support from the United States Chamber of Commerce and the National Rifle Association.^[40]

Campaign finance attorney Cleta Mitchell, who had filed an amicus curiae brief on behalf of two advocacy organizations opposing the ban, wrote that “The Supreme Court has correctly eliminated a constitutionally flawed system that allowed media corporations (e.g., The Washington Post Co.) to freely disseminate their opinions about candidates using corporate treasury funds, while denying that constitutional privilege to Susie’s Flower Shop Inc. … The real victims of the corporate expenditure ban have been nonprofit advocacy organizations across the political spectrum.”^[43]

Heritage Foundation fellow Hans A. von Spakovsky, a former Republican member of the Federal Election Commission, said “The Supreme Court has restored a part of the First Amendment that had been unfortunately stolen by Congress and a previously wrongly-decided ruling of the court.”^[44]

Libertarian Cato Institute analysts John Samples and Ilya Shapiro wrote that restrictions on advertising were based on the idea “that corporations had so much money that their spending would create vast inequalities in speech that would undermine democracy”. However, “to make campaign spending equal or nearly so, the government would have to force some people or groups to spend less than they wished. And equality of speech is inherently contrary to protecting speech from government restraint, which is ultimately the heart of American conceptions of free speech.”^[45]

The American Civil Liberties Union filed an amicus brief that supported the decision,^[46] saying that “section 203 should now be struck down as facially unconstitutional”, though membership was split over the implications of the ruling and its board sent the issue to its special committee on campaign finance for further consideration.^[47] On March 27, 2012, the ACLU reaffirmed its stance in support of the Supreme Court’sCitizens United ruling.^[48]

Academics and attorneys

Bradley A. Smith, professor of law at Capital University Law School, former chairman of the FEC, founder of the Center for Competitive Politics and a leading proponent of deregulation of campaign finance, wrote that the major opponents of political free speech are “incumbent politicians” who “are keen to maintain a chokehold on such speech”. Empowering “small and midsize corporations—and every incorporated mom-and-pop falafel joint, local firefighters’ union, and environmental group—to make its voice heard” frightens them.^[49] In response to statements by President Obama and others that the ruling would allow foreign entities to gain political influence through U.S. subsidiaries, Smith pointed out that the decision did not overturn the ban on political donations by foreign corporations and the prohibition on any involvement by foreign nationals in decisions regarding political spending by U.S. subsidiaries, which are covered by other parts of the law.^[50]

Campaign finance expert Jan Baran, a member of the Commission on Federal Ethics Law Reform, agreed with the decision, writing that “The history of campaign finance reform is the history of incumbent politicians seeking to muzzle speakers, any speakers, particularly those who might publicly criticize them and their legislation. It is a lot easier to legislate against unions, gun owners, ‘fat cat’ bankers, health insurance companies and any other industry or ‘special interest’ group when they can’t talk back.” Baran further noted that in general conservatives and libertarians praised the ruling’s preservation of the First Amendment and freedom of speech, but that liberals and campaign finance reformers criticized it as greatly expanding the role of corporate money in politics.^[51]

Attorney Kenneth Gross, former associate general counsel of the FEC, wrote that corporations relied more on the development of long-term relationships, political action committees and personal contributions, which were not affected by the decision. He held that while trade associations might seek to raise funds and support candidates, corporations which have “signed on to transparency agreements regarding political spending” may not be eager to give.^[43]

The New York Times asked seven academics to opine on how corporate money would reshape politics as a result of the court’s decision.^[52] Three of these wrote that the effects would be minimal or positive: Christopher Cotton, a University of Miami School of Business assistant professor of economics, wrote that “There may be very little difference between seeing eight ads or seeing nine ads (compared to seeing one ad or two). And, voters recognize that richer candidates are not necessarily the better candidates, and in some cases, the benefit of running more ads is offset by the negative signal that spending a lot of money creates.^[52] Eugene Volokh, a professor of law at UCLA, stated that the “most influential actors in most political campaigns” are media corporations which “overtly editorialize for and against candidates, and also influence elections by choosing what to cover and how to cover it”. Holding that corporations like Exxon would fear alienating voters by supporting candidates, the decision really meant that voters would hear “more messages from more sources”.^[52] Joel Gora, a professor at Brooklyn Law School who had previously argued the case of Buckley v. Valeo on behalf of the American Civil Liberties Union, said that the decision represented “a great day for the First Amendment” writing that the Court had “dismantled the First Amendment ‘caste system’ in election speech”.^[52]

Journalists

The Editorial Board of the San Antonio Express-News criticized McCain–Feingold’s exception for media corporations from the ban on corporate electioneering, writing that it “makes no sense” that the paper could make endorsements up until the day of the election but advocacy groups could not. “While the influence of money on the political process is troubling and sometimes corrupting, abridging political speech is the wrong way to counterbalance that influence.”^[53]

Anthony Dick in National Review countered a number of arguments against the decision, asking rhetorically, “is there something uniquely harmful and/or unworthy of protection about political messages that come from corporations and unions, as opposed to, say, rich individuals, persuasive writers, or charismatic demagogues?” He noted that “a recent Gallup poll shows that a majority of the public actually agrees with the Court that corporations and unions should be treated just like individuals in terms of their political-expenditure rights”.^[54] A Gallup poll taken in October 2009 and released soon after the decision showed 57 percent of those surveyed agreed that contributions to political candidates are a form of free speech and 55 percent agreed that the same rules should apply to individuals, corporations and unions. Sixty-four percent of Democrats and Republicans believed campaign donations are a form of free speech.^[55]

Chicago Tribune editorial board member Steve Chapman wrote “If corporate advocacy may be forbidden as it was under the law in question, it’s not just Exxon Mobil and Citigroup that are rendered mute. Nonprofit corporations set up merely to advance goals shared by citizens, such as the American Civil Liberties Union and the National Rifle Association, also have to put a sock in it. So much for the First Amendment goal of fostering debate about public policy.”^[56]

Criticisms

American politicians[edit]

President Barack Obama stated that the decision “gives the special interests and their lobbyists even more power in Washington—while undermining the influence of average Americans who make small contributions to support their preferred candidates”.^[57] Obama later elaborated in his weekly radio address saying, “this ruling strikes at our democracy itself” and “I can’t think of anything more devastating to the public interest”.^[58] On January 27, 2010, Obama further condemned the decision during the 2010 State of the Union Address, stating that, “Last week, the Supreme Court reversed a century of law^[59] to open the floodgates for special interests—including foreign corporations—to spend without limit in our elections. Well I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities.”

Democratic senator Russ Feingold, a lead sponsor of the 2002 Bipartisan Campaign Reform Act, stated “This decision was a terrible mistake. Presented with a relatively narrow legal issue, the Supreme Court chose to roll back laws that have limited the role of corporate money in federal elections since Teddy Roosevelt was president.”^[60] Representative Alan Grayson, a Democrat, stated that it was “the worst Supreme Court decision since the Dred Scott case, and that the court had opened the door to political bribery and corruption in elections to come.^[61] Democratic congresswoman Donna Edwards, along with constitutional law professor and Maryland Democratic State Senator Jamie Raskin, have advocated petitions to reverse the decision by means of constitutional amendment.^[62] Rep. Leonard Boswell introduced legislation to amend the constitution.^[63] Senator John Kerry also called for an Amendment to overrule the decision.^[64] On December 8, 2011, Senator Bernie Sanders proposed the Saving American Democracy Amendment, which would reverse the court’s ruling.^[65][66]

Republican Senator John McCain, co-crafter of the 2002 Bipartisan Campaign Reform Act and the party’s 2008 presidential nominee, said “there’s going to be, over time, a backlash … when you see the amounts of union and corporate money that’s going to go into political campaigns”.^[67] McCain was “disappointed by the decision of the Supreme Court and the lifting of the limits on corporate and union contributions” but not surprised by the decision, saying that “It was clear that Justice Roberts, Alito and Scalia, by their very skeptical and even sarcastic comments, were very much opposed to BCRA.”^[60] Republican Senator Olympia Snowe opined that “Today’s decision was a serious disservice to our country.”^[68]

Although federal law after Citizens United v. Federal Election Commission still prohibited corporate contributions to all political parties, Sanda Everette, co-chair of the Green Party, stated that “The ruling especially hurts the ability of parties that don’t accept corporate contributions, like the Green Party, to compete.” Another Green Party officer, Rich Whitney, stated “In a transparently political decision, a majority of the US Supreme Court overturned its own recent precedent and paid tribute to the giant corporate interests that already wield tremendous power over our political process and political speech.”

Ralph Nader, a lawyer who placed third in the popular vote in the presidential elections of 2000, 2004, and 2008, condemned the ruling,^[69] saying that “With this decision, corporations can now directly pour vast amounts of corporate money, through independent expenditures, into the electoral swamp already flooded with corporate campaign PAC contribution dollars.” He called for shareholder resolutions asking company directors to pledge not to use company money to favor or oppose electoral candidates.^[70] Pat Choate, former Reform Party candidate for Vice President, stated, “The court has, in effect, legalized foreign governments and foreign corporations to participate in our electoral politics.”^[71]

International

Ambassador Janez Lenarčič, speaking for the Organization for Security and Co-operation in Europe‘s election body, which has overseen over 150 elections, stated that the ruling may adversely affect the organization’s two commitments of “giving voters a genuine choice and giving candidates a fair chance” in that “it threatens to further marginalize candidates without strong financial backing or extensive personal resources, thereby in effect narrowing the political arena”.^[72]

Academics and attorneys

“	Money Isn’t Speech and Corporations Aren’t People	”
—David Kairys[73]

The constitutional law scholar Laurence H. Tribe wrote that the decision “marks a major upheaval in First Amendment law and signals the end of whatever legitimate claim could otherwise have been made by the Roberts Court to an incremental and minimalist approach to constitutional adjudication, to a modest view of the judicial role vis-à-vis the political branches, or to a genuine concern with adherence to precedent” and pointed out, “Talking about a business corporation as merely another way that individuals might choose to organize their association with one another to pursue their common expressive aims is worse than unrealistic; it obscures the very real injustice and distortion entailed in the phenomenon of some people using other people’s money to support candidates they have made no decision to support, or to oppose candidates they have made no decision to oppose.”^[74]

Former Supreme Court Justice Sandra Day O’Connor, whose opinions had changed from dissenting in Austin v. Michigan State Chamber of Commerce to co-authoring (with Stevens) the majority opinion in McConnell v. Federal Election Commission twelve years later, criticized the decision only obliquely, but warned, “In invalidating some of the existing checks on campaign spending, the majority in Citizens United has signaled that the problem of campaign contributions in judicial elections might get considerably worse and quite soon.”^[75]

Richard L. Hasen, professor of election law at Loyola Law School, argued that the ruling “is activist, it increases the dangers of corruption in our political system and it ignores the strong tradition of American political equality”. He also described Justice Kennedy’s “specter of blog censorship” as sounding more like “the rantings of a right-wing talk show host than the rational view of a justice with a sense of political realism”.^[76]

Kathleen M. Sullivan, professor at Stanford Law School and Steven J. Andre, adjunct professor at Lincoln Law School, argued that two different visions of freedom of speech exist and clashed in the case. An egalitarian vision skeptical of the power of large agglomerations of wealth to skew the political process conflicted with a libertarian vision skeptical of government being placed in the role of determining what speech people should or should not hear.^[77][78] Wayne Batchis, Professor at the University of Delaware, in contrast, argues that the Citizens United decision represents a misguided interpretation of the non-textual freedom of association.^[79]

The four other scholars of the seven writing in the aforementioned New York Times article were critical.^[52] Richard L. Hasen, Distinguished Professor of election law at Loyola Law School argued differently from his Slate article above, concentrating on the “inherent risk of corruption that comes when someone spends independently to try to influence the outcome of judicial elections”, since judges are less publicly accountable than elected officials. Heather K. Gerken, Professor of Law at Yale Law School wrote that “The court has done real damage to the cause of reform, but that damage mostly came earlier, with decisions that made less of a splash.” Michael Waldman, director of the Brennan Center for Justice at N.Y.U. School of Law, opined that the decision “matches or exceeds Bush v. Gore in ideological or partisan overreaching by the court”, explaining how “Exxon or any other firm could spend Bloomberg-level sums in any congressional district in the country against, say, any congressman who supports climate change legislation, or health care, etc.” andFred Wertheimer, founder and president of Democracy 21 considered that “Chief Justice Roberts has abandoned the illusory public commitments he made to ‘judicial modesty’ and ‘respect for precedent’ to cast the deciding vote for a radical decision that profoundly undermines our democracy,” and that “Congress and presidents past have recognized this danger and signed numerous laws over the years to prevent this kind of corruption of our government.”^[52]

Journalists

The New York Times stated in an editorial, “The Supreme Court has handed lobbyists a new weapon. A lobbyist can now tell any elected official: if you vote wrong, my company, labor union or interest group will spend unlimited sums explicitly advertising against your re-election.”^[80] Jonathan Alter called it the “most serious threat to American democracy in a generation”.^[81] The Christian Science Monitor wrote that the Court had declared “outright that corporate expenditures cannot corrupt elected officials, that influence over lawmakers is not corruption, and that appearance of influence will not undermine public faith in our democracy”.^[82]

Media coverage

Political blogs

Most blogs avoided the theoretical aspects of the decision and focused on more personal and dramatic elements, including the Barack Obama–Samuel Alito face-off during the President’s State of the Union address.^[83] There, President Obama argued that the decision “reversed a century of law” (the federal ban on corporate and union expenditures dates from 1947) and that it would allow “foreign corporations to spend without limits in our elections”, during which Justice Alito, in the audience, perceptibly mouthed the words “not true”. This event received extensive comment from political bloggers, with a substantial amount of the coverage concentrated on whether or not foreign corporations would be able to make substantial political contributions in US elections. In the opinion, the Court had specifically indicated it was not overturning the ban on foreign contributions.

Opinion polls

An ABC–Washington Post poll conducted February 4–8, 2010, showed that 80% of those surveyed opposed (and 65% strongly opposed) the Citizens United ruling, which the poll described as saying “corporations and unions can spend as much money as they want to help political candidates win elections”. Additionally, 72% supported “an effort by Congress to reinstate limits on corporate and union spending on election campaigns”. The poll showed large majority support from Democrats, Republicans and independents.^[84][85][86]

A Gallup Poll conducted in October 2009, after oral argument, but released after the Supreme Court released its opinion, found that 57 percent of those surveyed “agreed that money given to political candidates is a form of free speech” and 55 percent agreed that the “same rules should apply to individuals, corporations and unions”. However, in the same poll respondents by 52% to 41% prioritized limits on campaign contributions over protecting rights to support campaigns and 76% thought the government should be able to place limits on corporation or union donations.^[87][88]

Separate polls by various conservative organizations, including the plaintiff Citizens United and the Center for Competitive Politics, found support for the decision.^[89] In particular, the Center for Competitive Politics poll^[90] found that 51% of respondents believed that Citizens United should have a right to air ads promoting Hillary: The Movie. The poll also found that only 22 percent had heard of the case.

Further court rulings

SpeechNow is a nonprofit, unincorporated association organized as a section 527 entity under the U.S. Internal Revenue Code. The organization was formed by individuals who seek to pool their resources to make independent expenditures expressly advocating the election or defeat of federal candidates. SpeechNow planned to accept contributions only from individuals, not corporations or other sources prohibited under the Federal Election Campaign Act. On February 14, 2008, SpeechNow and several individual plaintiffs filed a complaint in the U.S. District Court for the District of Columbia challenging the constitutionality of the Federal Election Campaign Act provisions governing political committee registration, contribution limits and disclosure. The plaintiffs contended that the Act unconstitutionally restricts their association guaranteed under the First Amendment. By requiring registration as a political committee and limiting the monetary amount that an individual may contribute to a political committee, SpeechNow and the other plaintiffs asserted that the Act unconstitutionally restricted the individuals’ freedom of speech by limiting the amount that an individual can contribute to SpeechNow and thus the amount the organization may spend. SpeechNow also argued that the reporting required of political committees is unconstitutionally burdensome.^[91]

On March 26, 2010, the U.S. Court of Appeals for the District of Columbia Circuit ruled in SpeechNow.org. v. FEC that the contribution limits of 2 U.S.C. §441a were unconstitutional as applied to individuals’ contributions to SpeechNow. The court also ruled that the reporting requirements of 2 U.S.C. §§432, 433 and 434(a) and the organizational requirements of 2 U.S.C. §431(4) and §431(8) can be constitutionally applied to SpeechNow.^[91] A unanimous nine-judge panel of the United States Court of Appeals^[92] struck down the federal limits on contributions to federal political committees that make only independent expenditures and do not contribute to candidates or political parties. This type of “independent expenditure committee” is inherently non-corruptive, the Court reasoned, and therefore contributions to such a committee can not be limited based on the government’s interest in preventing political corruption.^[28] In light of the Supreme Court’s decision in Citizens United v. FEC, in which the Supreme Court held that the government has no anti-corruption interest in limiting independent expenditures, the appeals court ruled that “contributions to groups that make only independent expenditures cannot corrupt or create the appearance of corruption.” As a result, the court of appeals held that the government has no anti-corruption interest in limiting contributions to an independent group such as SpeechNow. Contribution limits as applied to SpeechNow “violate the First Amendment by preventing [individuals] from donating to SpeechNow in excess of the limits and by prohibiting SpeechNow from accepting donations in excess of the limits.” The court noted that its holding does not affect direct contributions to candidates, but rather contributions to a group that makes only independent expenditures.^[91] The appeals court held that, while disclosure and reporting requirements do impose a burden on First Amendment interests, they “‘impose no ceiling on campaign related activities'” and “‘do not prevent anyone from speaking.'” Furthermore, the court held that the additional reporting requirements that the Commission would impose on SpeechNow if it were organized as a political committee are minimal, “given the relative simplicity with which SpeechNow intends to operate.” Since SpeechNow already had a number of “planned contributions” from individuals, the court ruled that SpeechNow could not compare itself to “ad hoc groups that want to create themselves on the spur of the moment.” Since the public has an interest in knowing who is speaking about a candidate and who is funding that speech, the court held that requiring such disclosure and organization as a political committee are sufficiently important governmental interests to justify the additional reporting and registration burdens on SpeechNow.^[91]

On June 27, 2011, ruling in the consolidated cases Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett (No. 10-238) and McComish v. Bennett (No. 10-239), the Supreme Court deemed unconstitutional an Arizona law that provided extra taxpayer-funded support for office seekers who have been outspent by privately funded opponents or by independent political groups. A conservative 5–4 majority of justices said the law violated free speech, concluding the state was impermissibly trying to “level the playing field” through a public finance system. Arizona lawmakers had argued there was a compelling state interest in equalizing resources among competing candidates and interest groups.^[93] Opponents said the law violated free-speech rights of the privately financed candidates and their contributors, inhibiting fundraising and spending, discouraging participation in campaigns and limiting what voters hear about politics.^[94] Chief Justice John Roberts said in the court’s majority opinion that the law substantially burdened political speech and was not sufficiently justified to survive First Amendment scrutiny.^[94]

As a consequence of the decision, states and municipalities are blocked from using a method of public financing that is simultaneously likely to attract candidates fearful that they will be vastly outspent and sensitive to avoiding needless government expense. “The government can still use taxpayer funds to subsidize political campaigns, but it can only do that in a manner that provides an alternative to private financing” said William R. Maurer, a lawyer with the Institute for Justice, which represented several challengers of the law. “It cannot create disincentives.”^[95] The ruling meant the end of similar matching-fund programs in Connecticut, Maine and a few other places according to David Primo, a political science professor at the University of Rochester who was an expert witness for the law’s challengers.^[96]

Despite the Citizens United ruling, In December 2011, the Montana Supreme Court, in Western Tradition Partnership, Inc. v. Attorney General of Montana, upheld that state’s law limiting corporate contributions. Examining the history of corporate interference in Montana government that led to the Corrupt Practices Law, the majority decided that the state still had a compelling reason to maintain the restrictions. It ruled that these restrictions on speech were narrowly tailored and withstood strict scrutiny and thus did not contradict Citizens United v. Federal Election Commission.

While granting permission to file a Certiorari petition, the US Supreme Court agreed to stay the Montana ruling, although Justices Ginsburg and Breyer wrote a short statement urging the Court “to consider whether, in light of the huge sums of money currently deployed to buy candidate’s allegiance, Citizens United should continue to hold sway”.^[97] In June 2012, over the dissent of the same four judges who dissented in Citizens United, the Court simultaneously granted certiorari and summarily reversed the decision in Bullock.^[98] The Supreme Court majority rejected the Montana Supreme Court arguments in a two paragraph, twenty line per curiam opinion, stating that these arguments “either were already rejected in Citizens United, or fail to meaningfully distinguish that case.”^[99] The ruling makes clear that states cannot bar corporate and union political expenditures in state elections.^[100]

Legislative responses

Legislative impact

The New York Times reported that 24 states with laws prohibiting or limiting independent expenditures by unions and corporations would have to change their campaign finance laws because of the ruling.^[101]

Senator Dick Durbin (D-IL) proposed that candidates who sign up small donors receive $900,000 in public money. Others proposed that laws on corporate governance be amended to assure that shareholders vote on political expenditures.^[81]

In February 2010, Senator Charles E. Schumer of New York, immediate past Chairman of the Democratic Senatorial Campaign Committee, and Representative Chris Van Hollen of Maryland, Chairman of the Democratic Congressional Campaign Committee, outlined legislation aimed at undoing the decision.^[102] In April 2010, they introduced such legislation in the Senate and House, respectively.^[103] On June 24, 2010, H.R.5175 (The DISCLOSE Act) passed in the House of Representatives but failed in the Senate. It would have required additional disclosure by corporations of their campaign expenditures. The law, if passed, would also have prohibited political spending by U.S. companies with twenty percent or more foreign ownership, and by most government contractors.^[104]

The DISCLOSE Act included exemptions to its rules given to certain special interests such as the National Rifle Association and the American Association of Retired Persons. These gaps within the proposal attracted criticism from lawmakers on both political parties. “They are auctioning off pieces of the First Amendment in this bill… The bigger you are, the stronger you are, the less disclosure you have,” said Republican Congressman Dan Lungren of California. Democratic Congressman Adam Schiff of California commented, “I wish there had been no carve-outs”.^[105]

The DISCLOSE Act twice failed to pass the U.S. Senate in the 111th Congress, in both instances reaching only 59 of the 60 votes required to overcome a unified Republican filibuster.^[106][107]

A trimmed back version of the DISCLOSE Act was reintroduced in both the House and Senate in 2012 but did not pass.^{[citation needed]}

Some have argued for a constitutional amendment to overturn the decision. Move to Amend, a coalition formed in response to the ruling,^[108] seeks to amend the Constitution to abolish corporate personhood, thus stripping corporations of all rights under the Constitution.^[109][110] In an online chat with web community Reddit, President Obama endorsed further consideration of a constitutional amendment and stated “Over the longer term, I think we need to seriously consider mobilizing a constitutional amendment process to overturn Citizens United (assuming the Supreme Court Doesn’t revisit it)”.^[111] He further elaborated that “Even if the amendment process falls short, it can shine a spotlight of the super-PAC phenomenon and help apply pressure for change.”^[111]

States lawmakers and local elected officials urge for federal constitutional amendment[edit]

Sixteen states have called for a constitutional amendment to reverse the court’s decision:

California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Montana, New Jersey, New Mexico, Oregon, Rhode Island, Vermont and West Virginia.^[112][113]

In Vermont, the General Assembly approved “Joint Resolution Senate” No. 27 on May 2, 2014, going so far as to apply to Congress to call an Article V Convention to draft and propose a federal constitutional amendment to overturn Citizens United. In California, the lower house of the Legislature approved “Assembly Joint Resolution” No. 1 on January 30, 2014, to likewise call a constitutional convention to pass an amendment that would repeal the decision; the California Senate has not yet acted, however.^[114][115] And in Minnesota, the House of Representatives has yet to vote on “Senate File” No. 17 which was approved by that state’s Senate on May 2, 2013.

On a local level, Washington D.C. and almost 400 other municipalities have also passed resolutions requesting a federal constitutional amendment—itemized on the United for the People website.^[116]

Super PACs

Citizens United v. Federal Election Commission has often been credited for the creation of “super PACs“, political action committees which make no contributions to candidates or parties and so can accept unlimited contributions from individuals, corporations and unions. Certainly, the holding in Citizens United helped affirm the legal basis for super PACs by deciding that, for purposes of establishing a “compelling government interest” of corruption sufficient to justify government limitations on political speech, “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption”.^[117] However, it took another decision by the U.S. Court of Appeals for the District of Columbia Circuit, Speechnow.org v. Federal Election Commission, to actually authorize the creation of super PACs. While Citizens United held that corporations and unions could make independent expenditures, a separate provision of the Federal Election Campaign Act, at least as long interpreted by the Federal Election Commission, held that individuals could not contribute to a common fund without it becoming a PAC. PACs, in turn, were not allowed to accept corporate or union contributions of any size or to accept individual contributions in excess of $5000. In Speechnow.org, the D.C. Circuit, sitting en banc, held 9–0 that in light of Citizens United, such restrictions on the sources and size of contributions could not apply to an organization that made only independent expenditures in support of or opposition to a candidate, but not contributions to a candidate’s campaign.^[118] The effectiveness of this system remains a hot topic in American politics. See Political Action Committee.

Citizens United and SpeechNOW left their imprint on the 2012 United States presidential election. In any event, the implications of Citizens United were quickly apparent. In March, 2010, the D.C. Circuit ruled that individuals could make unlimited contributions to so-called Super PACs, which supported individual candidates. This opened the door for Presidential campaigns in 2012 that were essentially underwritten by single individuals. Sheldon Adelson, the gambling entrepreneur, gave approximately fifteen million dollars to support Newt Gingrich. Foster Friess, a Wyoming financier, donated almost two million dollars to Rick Santorum’s Super PAC. Karl Rove organized Super PACs that spent over $300 million in support of Republicans during the 2012 elections.^[119]

In addition to indirectly providing support for the creation of super PACs, Citizens United allowed incorporated 501(c)(4) public advocacy groups (such as the National Rifle Association or Sierra Club, or the group Citizens United itself) and trade associations to make expenditures in political races. Such groups may not, under the tax code, have a primary purpose of engaging in electoral advocacy. These organizations must disclose their expenditures, but unlike super PACs they do not have to include the names of their donors in their FEC filings. A number of partisan organizations, such as Karl Rove‘s influential conservativeCrossroads Grassroots Policy Strategies or the liberal 21st Century Colorado, have since registered as tax-exempt 501(c)(4) groups (defined as groups promoting “social welfare”) and engaged in substantial political spending.^[120][121] This has led to claims^{[122][123][124]} of large secret donations, and questions about whether such groups should be required to disclose their donors. Historically, such non-profits have not been required to disclose their donors or names of members. See National Association for the Advancement of Colored People v. Alabama.

See also

• 1996 United States campaign finance controversy
• 2009 term opinions of the Supreme Court of the United States
• Bank of the United States v. Deveaux (1809)
• David Bossie
• Issue advocacy ads
• McCutcheon v. FEC
• US corporate law

Notes

External links

• Court documents.
• Oral Argument Transcript, PDF
• Text of Supreme Court decision, PDF
• Text of Supreme Court decision, HTML
• Seligman, Joel, “Is The Corporation The Person? Reflections on Citizens United v. Federal Election Commission”, speech May 6, 2010; with thanks by Seligman to John Field for assistance.
• Zephyr Teachout, The Anti-Corruption Principle, 94 Cornell L. Rev. 341 (2009).
• Citizens United and the Scope of Professor Teachout’s Anti-Corruption Principle, 107 Nw. U. L. Rev. 399; 107 Nw. U. L. Rev. Colloquy 1 (2012).
• “Money Unlimited: How John Roberts Orchestrated Citizens United” written by Jeffrey Toobin and published by The New Yorker on May 21, 2012. An article about the beginnings of Campaign finance law i.e. theTillman Act of 1907, the Supreme Court case history regarding campaign finance before Citizens United, the court proceedings leading up to the Citizens United ruling and the aftermath of the Citizens United ruling.

http://en.wikipedia.org/wiki/Citizens_United_v._Federal_Election_Commission

 

 

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