Citizens United v. FEC: Departure from Precedent Opens the Gate to "Phantom" Political Speakers

Esther Houseman

In Citizens United v. FEC, the Supreme Court of the United States held that a ban on the use of corporate and union general treasuries to fund speech advocating the election or defeat of a political candidate violated the First Amendment of the United States Constitution. The majority reached this holding by finding that the Bipartisan Campaign Reform Act's (“BCRA”) ban on the use of general treasury funds to finance independent expenditures constituted an “outright ban” on corporate political speech. In so holding, the Court failed to recognize the distinct threat that corporations pose to the political process. That is, corporations are able to use the corporate form to create the appearance of strong political backing for a political position that does not reflect the support of actual individuals, individuals who have provided funds for the purpose of supporting a corporation's political speech.

Additionally, in reaching its holding, the Citizens United Court improperly extrapolated assertions from its decisions in Buckley v. Valeo and First National Bank of Boston v. Bellotti. The Court relied on its assertion in Buckley that speech restrictions based on a speaker's wealth are impermissible and its assertion in Bellotti that “the worth of speech ‘does not depend upon the identity of its source”’ to erroneously conclude that restrictions on corporate independent political expenditures are unconstitutional. Furthermore, the Court mischaracterized the antidistortion rationale it applied in Austin v. Michigan State Chamber of Commerce as an outlier in the Court's corporate expenditure jurisprudence. To the contrary, Austin's antidistortion rationale was not an anomaly but a natural extension of the exception to corporate expenditure restrictions that the Court crafted in FEC v. Massachusetts Citizens for Life (“MCFL”).