Gene Strandberg, Gilpin County. Citizens United is a political action committee (PAC) founded in 1988 by conservative political consultant Floyd Brown, with majority funding from the Koch brothers. Its president since 2000 has been David Bossie, who took a leave of absence in 2016 to be Trump’s deputy campaign manager. He is also a close friend of Stephen Bannon and Kellyanne Conway, even introducing Trump and Bannon in 2011. 

In 2004 Citizens United filed a complaint before the Federal Election Commission charging that advertisements for Michael Moore’s film Farenheit 9/11 constituted political advertising, so could not be aired within 30 days before a primary election or 60 days before a general election. After finding that no broadcast advertisements for the movie and featuring a candidate had been made within these time restrictions, the FEC dismissed the complaint. 

Citizens United filed another complaint, claiming the movie itself constituted illegal corporate spending by advocating the election or defeat of a candidate. The FEC dismissed that complaint, ruling that the movie, its trailers and its website were bona fide commercial activity, not contributions or expenditures as defined by the Federal Election Campaign Act. 

To claim itself as a commercial filmmaker, Citizens United produced several documentaries from 2005-2007. Its latest effort was Hillary: The Movie, which it wanted to air on DirecTV and to advertise through television commercials. In December 2007 they filed a complaint in the U.S. District Court for the District of Columbia challenging the constitutionality of several statutes governing ‘electioneering communications’. A three-judge court was convened to hear the case. They wanted the court to declare the disclosure and disclaimer requirements unconstitutional as applied to their intended ads, and that the movie was exempt from corporate funding restriction. They also wanted corporate and union funding restriction declared unconstitutional, and for preliminary and permanent injunctions be issued preventing the Federal Elections Commission from enforcing its regulations. The District Court ruled against Citizens United, which then appealed to the Supreme Court, where it wanted to be all along. 

The Supreme Court heard the case on March 9, 2009, the outcome a predictable 5-4 in favor of Citizens United. Chief Justice John Roberts wrote the majority opinion that the Bipartisan Campaign Reform Act (BCRA) allowed the showing of the film. Justice Kennedy, in his concurrence, argued that the Court should have done more than Citizens United wanted. Alito, Scalia and Thomas agreed and convinced Roberts to let Kennedy’s concurrence become the majority opinion. Justice Souter, who announced his retirement while writing the dissent, accused Roberts of manipulating Court procedures to produce the desired outcome. That led to a re-argument of the case on September 9, at which the extreme-right majority expanded the case to include the corporate agenda as expressed by Justice Kennedy. 

They decided that BCRA#203 “prohibition of all independent expenditures by corporations and unions” violated the First Amendment’s protection of free speech. They made this ruling even though the original complaint was filed to allow the showing of a film, and in spite of the fact that, in its prior motion for summary judgment, Citizens United had abandoned its facial challenge to BCRA#203, with the parties agreeing to the dismissal of the claim. The ruling effectively prohibits Congress and State Legislatures from regulating corporate participation in the political process. Remember the Powell Memorandum: “The judiciary may be the most important instrument for social, economic, and political change…to argue pro-business viewpoints in front of activist judges, and carefully selected cases should be advanced in the judicial system.”  

We close with the dissent of Justice John Paul Stevens. “Essentially, five Justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law. “…corporations…are not themselves members of ‘We the People’ by whom and for whom our Constitution was established. 

“…in a 1982 case…then-Justice Rehnquist wrote for a unanimous Court ‘careful legislative adjustment to the federal electoral laws, in a cautious advance, step by step, to account for the permissible assessment of the dangers posed by those entities to the electoral process. The governmental interest in preventing both actual corruption and the appearance of corruption of elected representatives has long been recognized, and there is no reason why it may not…be accomplished by treating…corporations…differently than individuals’.

“…The distinctive threat to democratic integrity posed by corporate domination was recognized at ‘the inception of the republic’ and ‘has been a persistent theme in American political life ever since’. It is only certain Members of this Court, not the listeners themselves, who have agitated for more corporate electioneering. 

“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. 

“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.” 

Next time: What can we do?