Defending Citizens United

The US Supreme Court AP PHOTO
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The US Supreme Court - Photo courtesy of AP and VOA News

BY TRACY RYAN – There is a lot of controversy circulating about the U.S. Supreme Court Decision in Citizens United v. Federal Election Commission. The decision involved a non-profit corporation, Citizens United, and their production and distribution of a film that was hostile to Hillary Clinton during her 2008 bid for the presidency.

At issue was the application of United States Code section 441b that prohibits corporations from using funds directly from their treasuries to influence elections. The court ruled broadly that such prohibitions violated the First Amendment.


Some quotes from the majority opinion written by Justice Kennedy follow.

In regards to the complexity of the rules the FEC has created to enforce current law….“the FEC has created a regime that allows it to select what political speech is safe for public consumption by applying ambiguous tests. If parties want to avoid litigation and the possibility of civil and criminal penalties, they must either refrain from speaking or ask the FEC to issue an advisory opinion approving of the political speech in question. Government officials pore over each word of a text to see if, in their judgment, it accords with the 11 – factor test they have promulgated. This is an unprecedented governmental intervention into the realm of speech.”

In regards the potential chilling effects of 441b……..“Thus the following acts would all be felonies under 441b: The Sierra Club runs an ad, within the crucial phase of 60 days before the general election; that exhorts the public to disapprove of a Congressman who favors logging in national forests, the National Rifle Association publishes a book urging the public to vote for the challenger because the incumbent U.S. Senator supports a handgun ban; and the American Civil Liberties Union creates a Web site telling the public to vote for a Presidential candidate in light of that candidate’s defense of free speech.  These prohibitions are classic examples of censorship.”

In conclusion…” We find no basis for the proposition that, in the context of political speech, the Government may impose restrictions on certain disfavored speakers. Both history and logic lead us to this conclusion.”

You’d think that the court’s decision wouldn’t be controversial as a matter of law. Yet there are certainly people who are saying that corporations aren’t people and therefore don’t have First Amendment rights. But this is just sophistry.

A corporation is a group of people who pool their resources to achieve a common goal.  The people have First Amendment rights as individuals and thus as a group acting as one.  The same applies to any other group acting collectively as pointed out by Justice Kennedy in his examples of the Sierra Club etc.

Whether the people making the decisions to spend money from the corporate treasury in such ways have the full authority of the stockholders is a question between them and the stockholders, not them and the FEC.

However, the deep antipathy many Americans seem to have towards corporations has lead to widespread hostility to the notion that speech by corporations should have the same legal protection as that of other jointly funded organizations. For example an organization calling itself “Public Citizen” argues that we should pass a constitutional amendment to overturn Citizens United v Federal Election Commission.

Quoting the rationales they provide for this proposal is instructive…. “It is becoming harder to advance a public interest agenda on any issue affecting corporations – whether the issue is health care, climate change, reining in Wall Street, protecting worker’s rights, stopping consumer rip-offs, promoting a just trade policy and much more.”

The National Organization For Women states “thanks to the U.S. Supreme Court’s notorious Citizens United decision, Super PAC’s controlled by conservative power brokers like Karl Rove, Grover Norquist, and the billionaire Koch brothers can spend unlimited amounts of money to influence the outcome on Election Day.”

They go on to describe these individuals as anti-women extremists.

Seemingly it is the content of the speech that is being objected to by opponents of this decision.

The First Amendment is there to protect exactly the speech that people might find unpopular.


Tracy Ryan is the former chair of the Libertarian Party of Hawaii