Our election process was significantly damaged by one of the worst decisions in the history of the United States Supreme Court, Citizens United v. Federal Election Commission. Procedurally, the decision was hypocritical, an act of judicial activism antithetical to the what generally is viewed as appropriate by Republicans. Substantively, it enables foreign shareholders to exercise the rights of American citizens through the corporations those shareholders come to own and control.

CENTRAL THESIS: The danger posed by the Court’s decision in Citizens United only in part has to do with campaign finance. The greater danger is its new-found bestowal upon corporations of rights equal to those of human beings. The 2010 elections, despite the significant amounts of money spent, do not reflect the impact the case will have on our election process.

A corporation is not a living, breathing thing. It is created by statutes and consists of a piece of paper. A corporation has no national loyalties. Its loyalties are to its shareholders. A for-profit corporation’s morality is shaped by its reason for existence—profit.

In this country, anyone with the money to purchase shares of stock can do so. Stockbrokers do not check customers’ passports, only their credit ratings, and are glad to buy for American, Brit, Canadian, Chinese, Saudi, or Yemeni. By the same principle, a corporation may be chartered under the laws of Delaware or Indiana, but has no national loyalty. The corporation follows the dictates of its board of directors. The board is elected by shareholders based upon numbers of shares owned.

The upshot is the Supreme Court gave corporations some of the same rights as United States citizens. Control of corporations can be purchased by individuals or entities that are not Americans. If a Chinese corporation purchases controlling interest in a U.S.-chartered corporation, then Chinese nationals have acquired that corporation’s rights. Suddenly the folks who brought tanks to Tiananmen Square have a significantly larger hand in U.S. elections than the average American. Do you think you will fare better than the guy who held those shopping bags and stood in front of the tank? Remember him? I wonder where he is - or his remains are - today? I noticed he wasn’t at any of the press conferences that promoted the Olympics a couple of years ago. A lot of soldiers goose-stepped, at the opening ceremonies, across the Olympic Stadium. I do not recall military of a host country taking any, much less such a prominent, part in opening ceremonies of the Olympics.

The Saudis have a lot of money, too, as do a few other countries. Perhaps I sound xenophobic, i.e., expressing a fear or hatred of foreigners. I also fear so-called American corporations. Union Carbide killed a lot of people in Bhopal, India, in December, 1984. Our nation’s banks profited after 2007 from a catastrophe they helped create and for which they then were bailed out.

Corporations, before Citizens United, already wielded power in our government, but at least they had to operate through human cut-outs. Now corporations are recognized as having the same rights as living, breathing human beings.

Until January, 2010, there were restrictions placed on the amounts of money corporations could contribute to political campaigns. In January, the U.S. Supreme Court issued its ruling in Citizens United v. Federal Election Commission, 558 U.S. 50, 130 S.Ct. 876 (2010).

In rules of legal writing, only one court is referred to as "the Court," and that is the United States Supreme Court. In this column, and any other I post on this website, I will endeavor to follow those rules. So my references to the Court has no symbolic value I seek to advance.

What was Citizens United about?

Quite simply? It was about bashing Hillary Clinton.

Citizens United is a nonprofit corporation. Its annual budget was about $12 million. "Most of the funds are from donations by individuals; but, in addition, it accepts a small portion of its funds from for-profit corporations. 130 S.Ct. at 886-87. In January, 2008, Citizens United released a film entitled "Hillary: The Movie." The Court characterized the 90-minute film as a documentary that "mentions Senator Clinton by name and depicts interviews with political commentators and other persons, most of them quite critical of Senator Clinton." 130 S.Ct. at 887. In December, 2007, a cable company offered to make Hillary available, for free to viewers, on a video-on-demand channel called "Elections ‘08." To promote the film, ads were developed. As the Court noted: "Each ad includes a short (and, in our view, pejorative) statement about Senator Clinton" followed by the movie title and website. 130 S.Ct. at 887.

Is Hillary: The Movie protected free speech?

The First Amendment provides: "Congress shall make no law ... abridging the freedom of speech, or of the press..." In 1915, the United States Supreme Court held that movies are not protected by the First. After all, where are movies mentioned in the Amendment? In a 1951 decision, Paramount Pictures v. United States, the Court overruled the 1915 case. So yes—the movie is protected by the First Amendment.

If this was protected free speech, why was there any dispute to bring to the Court?

The issue was not whether the film’s producers could show Hillary. That would have been a slam-dunk. The issue was about money. At this point, I think the Court’s decision is to the point:

BCRA amended existing federal law to prohibit any "electioneering communication," defined as any broadcast, cable, or satellite communication that refers to a clearly identified candidate for Federal office and is made within 30 days of a primary or 60 days of a general election. 2 U.S.C. § 434(f)(3)(A).

"Citizens United wanted to make Hillary available through video-on-demand within 30 days of the 2008 primary elections but feared that the BCRA’s ban on corporate-funded independent expenditures would subject Citizens United to civil and criminal penalties.

BCRA also requires a disclaimer in TV advertising to identify any person or entity, other than a candidate, responsible for the content of the ad. 2 U.S.C.A. § 201. Any person or entity who provides more than $10,000.00 on electioneering communications within a calendar year is required to file a disclosure statement with the FEC. 2 U.S.C.A. § 311.

What was the nature of the case that went to the Supreme Court?

There are various types of legal actions in our courts. Someone (a human being) or something (a corporation or other legal entity) desiring a court to take action on a matter is called a party. A party does not simply file a paper marked "lawsuit" and give it to a clerk to figure out.

Citizens United filed a declaratory action and sought injunctive relief. In other words, they wanted a court to rule the BCRA was unconstitutional and to order the Federal Election Commission from enforcement of the BCRA. They argued (1) the BCRA was unconstitutional as applied to Hillary and (2) Disclaimer/disclosure requirements would expose donors to retaliation. The District Court entered summary judgment in favor of the FEC, holding there was no material issue of fact and that the law, as set down by previous decisions of the Supreme Court, clearly was on the FEC’s side.

A case usually is heard by the Supreme Court through the filing of a writ of certiorari. As noted on the Department of Justice website, although "most cases are subject to Supreme Court review only under the Court's discretionary certiorari jurisdiction, in some cases the law provides for an "appeal" to the Court, rather than for review by writ of certiorari. (One common example of appellate jurisdiction is a case that arises under the Voting Rights Act.) In practice, the Court’s appellate jurisdiction is also highly discretionary, but the form of papers filed and orders issued is somewhat different. Instead of a writ of certiorari, the party seeking review files a "jurisdictional statement" setting forth the grounds for appellate jurisdiction and argues that the case presents a substantial question that warrants Supreme Court review. The party that opposes review files a response that is styled a "motion to dismiss or affirm." If the Court decides to review the case, its issues an order that "notes probable jurisdiction" over the case. If the Court decides not to entertain full briefing and argument, it may issue a summary order affirming or reversing the judgment of the lower court, or it may "dismiss" the case "for lack of a substantial federal question." Summary affirmances and reversals have precedential value; dismissals are generally viewed as denials of certiorari."

In any case, the issues to be raised have to have been argued and addressed by the parties and the lower court. The Supreme Court cannot simply reach down and announce it is interested in issuing an opinion in a matter. There has to be a case in controversy, as the saying goes. However, the Court may consider a case where it finds "probable jurisdiction to do so.

Use of the word "argue" has different meaning in appellate law. One typically thinks of opponents in a debate or in court who speak and advance their positions on the matters in issue. In appellate law, to argue also means to set forth one’s positions in the briefs filed with the Court.

By a 5-4 vote the Court affirmed in part and reversed in part the decision of the lower court. Justice Kennedy wrote for a majority that held (1) the BCRA’s restrictions on corporate and union contributions were an unconstitutional violation of the free speech provisions of the First Amendment, but (2) disclaimer/disclosure requirements were not constitutional.

The decision was controversial for several reasons. First, it recognized that corporations have the same First Amendment right to free speech as human beings. Second, it significantly lifted campaign restrictions on corporations. Third, the Court ignored the stipulations made by the parties to the case—including Citizens United itself—to reach the issues it wanted to address.

What is a stipulation?

 

A stipulation is a voluntary agreement between opposing parties concerning some relevant point. Black’s Law Dictionary, New Pocket ed., 1996, p. 594. Parties to a case are bound by their stipulations.

What was the outcome of the case?