The Partisan Court: The Era of Political Partisanship on the U.S. Supreme Court by Ryan J Rebe

Author:Ryan J Rebe [Rebe, Ryan J]
Language: eng
Format: epub
Tags: Law, government, Federal, Political Science, History & Theory, American Government, Judicial Branch
ISBN: 9781793611345
Google: L99CEAAAQBAJ
Publisher: RowmanLittlefield
Published: 2021-10-11T22:13:33+00:00

Chapter 8

Citizens United v. Federal Election Commission (2010)

Arguably the most controversial decision of the past twenty years, Citizens United stands as a testament to the willingness of Supreme Court justices to disregard statutes and even their own precedent when partisan interests are at stake.1 Under the Federal Election Campaign Act of 1971 (FECA), Congress banned corporations and unions from using general treasury funds to make independent expenditures expressly advocating for the election or defeat of a candidate.2 FECA, 2 U.S.C. § 441b prohibited contributions or expenditures by corporations or labor organizations in connection with federal elections.3 Subsequently, Congress passed § 203 of the Bipartisan Campaign Reform Act of 2002 (BCRA), that amended FECA to include a ban on corporations and unions using general treasury funds for electioneering communications (Section 203 was codified as part of 2 U.S.C. § 441b).4 These statutes were part of a long-standing tradition dating back to the Tillman Act of 1907,5 which banned corporations from making monetary contributions in connection with any election for political office, and the Federal Corrupt Practices Act of 1925, which expanded the ban on corporations beyond money contributions to include “anything of value.”6 Congress enacted these statutes in recognition of the corrupting influence corporations have over elected officials.

The Supreme Court respected Congress’ prerogatives in this area for over a century. In Austin v. Michigan Chamber of Commerce (1990), the court held that Congress may ban political speech based on the speaker’s corporate identity.7 Subsequently, in McConnell v. Federal Election Commission (2003), the court upheld limits on electioneering communications.8 The Citizens United decision marked an abrupt shift in the court’s First Amendment jurisprudence when it came to campaign finance law and essentially overturned the key parts of Austin and McConnell.

The corporation at the center of this case, Citizens United, posed as a nonprofit advocacy group. In reality, it was an extension of the Republican Party. Citizens United’s president, David Bossie, was a regular Fox News contributor and an eventual Deputy Campaign Manager for President Trump’s 2016 campaign. He worked as a Republican political operative for decades. The justices must have been aware of this at the time, and yet, Justice Kennedy’s opinion didn’t mention the corporation’s partisan leanings a single time.

Citizens United produced a film called Hillary: The Movie, a ninety-minute “documentary” highly critical of Hillary Clinton, who was the favorite at the time to win the 2008 presidential nomination of the Democratic Party. The film was basically a ninety-minute political commercial advocating against Hillary Clinton. The release of the film in January 2008, was obviously timed to coincide with the start of primary season. It was released in theaters and on DVD, but Citizens United also wanted to release it on video-on-demand free of charge. Citizens United was concerned that its film would violate federal elections laws, since it would be an electioneering communication released for free within thirty days of a primary. Thus, it sought declaratory and injunctive relief against the FEC in federal district court. Citizens United wanted to

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