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Citizens United v. Federal Election Commission 558 U.S. 50 (2010)

Summary: a 5-4 split overturned a century of legislation and court cases that limit the ability of corporations to affect elections, including the bipartisan 2002 McCain-Feingold law. It grants corporations First Amendment free speech rights, opening the door to unlimited secret election money.

Issue: rather than ruling narrowly on whether a supposedly non-profit, non-partisan organization could run ads for a documentary denouncing Hillary Clinton sixty days before the election, the court asks, is any limit on corporate contributions to elections censorship? Are corporations people? Is money speech?

Rules: The post-Watergate Buckley v. Valeo established that money is a form of speech. Citizens United also draws on the long-standing idea that corporations are people (Santa Clara County v Union Pacific Railroad); corporate allows evasion of responsibility (for example, the right to withhold information under its right to privacy or even to lie).

Application: The Federal Elections Commission ruled, and a district court upheld that the movie “is susceptible of no other interpretation than to inform the electorate that Senator Clinton is unfit for office, that the United States would be a dangerous place in a President Hillary Clinton world, and that viewers should vote against her.” Justice Stevens argued the majority changed the facts of the case to fit what they wanted to do. “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.”

Basically, the majority argued that earlier rulings to expand corporate speech were correct (e.g. Bellotti ) and overturned those that restricted it (e.g., Buckley , Austin and McConnell). The majority argued that “this Court now concludes that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption... And the appearance of influence or access will not cause the electorate to lose faith in this democracy.” No evidence is offered for this notion, though polls show people have in fact lost faith in government, fuelling both the Tea Party and Occupy movements. The basically reverts to the idea that only a senator getting a bag of money in return for a vote counts are corruption.

Justice Thomas argues that we should allow corporate money to be secret because if the people knew who was funding candidates and laws they did not like, then the people could retaliate against them. Austin is not well-reasoned, and furthermore technological changes make it obsolete. Austin held we should not allow money amassed in the economic marketplace to get power in the political marketplace, but the majority rules all money comes from the marketplace, so no limits should be put on corporate treasury spending. Moreover, if corporate money corrupts, it makes no sense to limit direct contribution to a candidate but not independent expenditure on issues. Since media is corporate, are we going to limit their speech (during elections?). Unlimited corporate expenditures are a necessary means of protecting the rights of the listeners, the voters.

Dissent: Justice Sonia Sotomayor suggested corporate personhood was a mistake. The majority ignored the argument that corporations are already granted a number of privileges (eternal life, ability to sign contracts). Justice Stevens wrote a ninety page dissenting opinion, the longest in his career.

Tranformation: Corporate rights expanded in the Robber Baron era, but were reined in somewhat during the Progressive Era and the New Deal (for example, a worker's right to join a union). However, after Earth Day led to environmental protections, corporate lawyer Lewis Powell (soon to be Justice) wrote a secret memo for the US Chamber of Commerce creating a broad long-term strategy for business to dominate the political process. The Citizens United decision solidifies corporate rights in election, giving rise to the SuperPAC, with its secret and unlimited money and eliminates an Arizona law that spending by a rich candidate triggers balancing public money to an opponent.

Effect: unprecedented secret cash in the 2010 midterm elections spending ($300 million, mostly going to conservatives). However, the court “doubled-down” in their chance to revisit the issue when Montana tried to keep its hundred year old law to keep corporations from buying elections that came out of its history of being controlled by the Copper Kings. The immediate effect of the midterms was an influx of Tea Party candidates which have given the Republicans a majority in the House, making compromise hence any action nearly impossible. Thus we are currently facing automatic tax increases, as well as arbitrary and substantial across the board cuts in the military and entitlement programs.The SuperPACs have pledged to spend even more in the 2012 campaign, almost all for negative attack ads, which suppress turnout.

Story: I’m Janice Alpern, I’m 47, a bookkeeper at an Iowa RV manufacturer. My eldest of three daughters is applying to college, though we’re not sure how we can afford it, as my hours have been cut and my vet husband has been unemployed for 14 months . We had to borrow money from my parents to keep up the mortgage (my father’s small lump payment when his pension was eliminated). We are registered independent, though I voted for Obama. Because we are a battleground swing state, we already have six minutes of political ads in a half hour show, and they are all the same: scary music, ugly images of the targetted candidate, a few raggedy headlines about how this guy is going to ruin our lives, then a screen with the bottom half filled with tiny letters while the voice tells us the message is from Concerned Citizens for a Better American Vision GPS or somesuch. What do oil companies, bankers and casino owners and real estate billionaires paying for these ads have to be concerned about? We’ve always make it a point to watch the nightly news and always vote. We even went door-to-door with the PTA to keep some funding for our schools. We believe president is an honest, smart and good-hearted man, but if he’s going to put all these new regulations on business like the ads say, we’ll never get our jobs back. Maybe we’ll just sit this one out, since our two votes don’t really matter.

Written by: Patrick McKercher 1040 words 8/24

Disclaimer: These IRATE summaries are for educational purpose only. (Are we really worried someone is going to use them in court?)

https://docs.google.com/document/d/1mM3DGAVpgc5-KP_Wq-_PvPXRlccytC8F9XRC__BQcUM/edit

Example of the IRATE format_

Adkins v. Children’s Hospital of District of Columbia, 261 U.S. 525 (1923)

In _Adkins_ the U.S. Supreme Court held that federal minimum wage legislation for women and children was an unconstitutional infringement of the corporate and individual liberty of contract as protected by the due process clause of the Fifth Amendment.

Issue: Can Congress establish minimum rates of wages for women in the District of Columbia?

Rule: The right to contract about one’s affairs is a part of the liberty of the individual protected by the due process clause of the 5th amendment.

Application: In 1918 Congress passed a law establishing a minimum wage for women and children in Washington D.C. A board of three members representing employers, employees, and the public was constituted to set standards of minimum wages in the different occupations in D.C., to determine “what wages are inadequate to supply the necessary cost of living to any such women workers to maintain them in good health and protect their morals”.

The Supreme Court argued that the D.C. legislation amounted to a price-fixing law; it is impossible to know the true cost of a necessary minimum wage; “the relation between earnings and morals is not capable of standardization”; the necessities of the employer are ignored; the 19th amendment has empowered women already as of 4 years earlier; and if this is allowed then Congressional power could be used to set a maximum wage, unthinkable.

In the landmark Supreme Court case of _Lochner v. New York_, 198 U.S. 45 (1905), the Supreme Court held that “liberty of contract” was implicit in the due process clause of the 14th Amendment. The Court rejected a New York law limiting the number of hours a baker could work each day to ten, and limiting the number of hours that a baker could work each week to 60, saying it was an “unreasonable, unnecessary and arbitrary interference with the right and liberty to contract”.

Transformation: The liberty of contract implied for corporations and individuals in the 5th Amendment must be applied to strike down minimum wage laws for women and children in Wash. D.C. In balancing the power of Congress to regulate the health and safety of Washington D.C. female residents against the right of corporate and individual persons to contract at will, the health and safety standards of real persons take second place. The general rule forbids legislative interference with the freedom of corporations and individuals to make contracts. The “common good…of society as a whole cannot be better served than the preservation against arbitrary restraint of the liberties of its constituent members.”

Effect: Fixing minimum wages for Washington D.C. women from $9 to $16.50 per week is unconstitutional. Female and corporate persons are “free” to contract for higher or lower wages.

Fictional Representational Story: I am Barbara Jackson, an African American apprentice laundry worker at Smith & Jones Laundry in Washington DC. The year is 1923. For the past 9 months I have been receiving $9 per week to work long, hot, tiring days cleaning laundry for corporate hotel clients. On April 20, 1923 I was told that I would have to negotiate my weekly wage directly with my boss at the Smith & Jones Laundry, because the day before (on April 19) the Supreme Court said I could no longer receive this already meager amount for my labor. I have been told I will need to take an $1.50 cut per week, making it impossible for me to provide shelter, food, and clothing for my three children.

Written by: Richard Hobbs

Disclaimer: These IRATE summaries are for educational purpose only.

IRATE text looks bkgd research

7/13/2012

6/Jul/2012

Tue, Jul 31 2012

George Lakoff

Professor of Cognitive Science and Linguistics, UC Berkeley; Co-author, The Little Blue Book: The Essential Guide to Thinking and Talking Democratic

Dr. Terry Christensen, Professor Emeritus, San Jose State University and Commonwealth Club Silicon Valley Advisory Council Member - Moderator

Language matters – especially when it comes to politics. With the 2012 election season upon us, linguistics expert Lakoff dissects the way we vote on important issues and presents his progressive, in-depth guide to changing political rhetoric and ideology

Location: Historic Hoover Theatre, 1635 Park Ave., San Jose

Time: 6:30 p.m. check-in, 7 p.m. program, 8 p.m. book signing

Cost: $15 standard, $10 members, $7 students (with valid ID)

===

People across the United States have been forced to make way for power lines, sidewalks, telephone poles, pipelines and other projects. In a 2005 case, the Supreme Court in a 5-to-4 ruling said that local governments could even force property owners to sell out to make way for private economic developments if officials felt that it would benefit the public.

The case, Kelo v. City of New London, became a rallying point for conservatives and others who said the ruling violated the Fifth Amendment prohibition against the taking of property except for “public use.” In a dissenting opinion, then-Justice Sandra Day O’Connor wrote the ruling meant that the “specter of condemnation hangs over all property.”7/28/2012

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pjt censor list (some)

Murray Edelman, Constructing the Political Spectacle, (University of Chicago, 1988)

With another election cycle underway, this slim classic proves timely and insightful once again.

Arundhati Roy, Walking with the Comrades (Penguin, 2011)

Essential reading for all who care about the commons, and a thoughtful challenge to those committed to non-violence.

Morris Berman, Why America Failed: The Roots of Imperial Decline (Wiley, 2011)

For anyone seeking to understand America today, how we got here, and where we unfortunately seem to be heading, cultural historian and social critic Morris Berman offers an unflinching and timely explanation. In an election year, this ought to be required reading.

...

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We're trying to keep the case summaries to one page, however, there is so much to the Citizens United case (lots of discussion about the precedent of the McConnell and Austin cases, for example) that I think the summathcase is going to need to be two pages.

Citizens United v. Federal Election Commission 558 U.S. (2010).

www.supremecourtus.gov

www.law.cornell.edu/supct

http://www.law.cct/html/08-205.ZS.html

http://www.scotusblog.com/case-files/cases/citizens-united-v-federal-election-commission/ tons of info

www.findlaw.com/casecode/supreme.html

The IRATE format explained

Case Name and Citation

The name and the citation of the U.S. Supreme Court case to look up the opinion.

BRIEF SUMMARY

The BRIEF SUMMARY section is for a 2 or 3 sentence simple summary of the Supreme Court case and its impact on people's everyday lives. This summary can then be extracted from various cases and compiled into a summary list to use in speeches or to place in flyers for Move to Amend events.

ISSUE

The ISSUE section is the central issue or question of the case.

The Issue is usually stated as a question.

RULE

The RULE is the law or precedent that the Court uses to decide the outcome of the case.

In this set of Supreme Court cases, the Rule is the Constitutional Right that the Court has fabricated for corporations under the concept of Corporate Personhood.

APPLICATION

The APPLICATION section is the analysis or explanation of how the Court has applied the Rule to the facts of the case.

This includes the following:

Brief description of the facts of the case (about 2 or 3 sentences),

Explanation of the reasoning that the Court used to apply the law to this set of facts.

TRANSFORMATION

The TRANSFORMATION section is the explanation of how the Supreme Court, in transforming the law, has transformed our world. The transformation is a larger perspective than the immediate effect in the next section. The transformation is how a human need of the people of a state or the country has been taken away when the Supreme Court gave protection to corporations instead.. For example, in the area of the environment, the transformation might be that we no longer can protect our air, water, and land from corporations polluting our resources.

EFFECT

The EFFECT section is the explanation of the Effect on "We the People." The effect is the immediate effect and how a human need of the people of a state or the country has been taken away when the Supreme Court gave protection to corporations instead. For example, in the area of the environment, the effect might be that the Supreme Court struck down a state law that was designed to protect the California coastline from offshore oil drilling.

FICTIONAL REPRESENTATIONAL STORY

good analysis of runup of Hillary; http://www.scotusblog.com/?p=9025

...Background

In modern national election campaigns, for President and for members of Congress, increasingly sophisticated modes of communication seek to capture the voting public’s attention, and to shape election outcomes. In various media, including films, the “attack ad” is one of the most ubiquitous kinds of message that campaign organizations or private advocacy groups put out. Congress made a major effort to put some limits on such so-called “electioneering communications” — including attack ads — when, in 2002, it passed the Bipartisan Campaign Reform Act. Since then, the Supreme Court has spent a good deal of time and energy sorting out constitutional issues surrounding one of the Act’s most controversial sections — Section 203, the “electioneering communications” section. The Court in the 2003 decision in McConnell v. FEC upheld that provision as written — that is, against “facial” constitutional challenges targeting its very wording. More recently, the Court has returned with some frequency to resolving challenges to Section 203 as it has been applied in the context of specific political messages. It returns to that exploration in Citizens United v. Federal Election Commission.

Section 203 — a modern echo of federal regulation that goes back to 1907 — is aimed at corporations (including non-profit advocacy organizations using the corporate form) and at labor unions. It does not restrict corporate or union expenditures used to finance campaign communications, when those are paid for out of a PAC — a political action committee. But, if a corporation or union wishes to spend its own treasury funds, Section 203 bars the use of those funds to finance communications that refer to a clearly identified candidate for the presidency or for Congress, on radio, television, cable TV, or satellite broadcast, within 30 days before a primary election or nominating convention, or within 60 dats before a general election.

In 2007, the Supreme Court, in FEC v. Wisconsin Right to Life, ruled that Section 203 only applies to communications that either urge a direct vote for or against an identified candidate, or are the “functional equivalent” of such encouragement — that is, if the communication “is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate,” even if it does not explicitly say that is what it is urging.

Along with Section 203, Congress in the 2002 Act added two other provisions that seek to bring out into the open the sources of financing for such communications. A disclosure requirement (Section 201) provides that any corporation or union that spends more than $10,000 in a year to produce or air such communications must file a report with the FEC revealing the names and addresses of anyone who contributed $1,000 or more for the communication’s preparation or distribution. A disclaimer requirement (Section 311) provides that, if the communication is not authorized by a candidate or a political committee, the broadcast must say who is responsible for the content, plus the name and address of the group that has prepared the communication.

The disclosure and disclaimer provisions, like Section 203 itself, were upheld by the Court in 2003 against facial challenges.

Citizens United, a Virginia-based conservative advocacy group (organized as a non-profit corporation), has been centrally involved in tests of the constitutionality of the federal controls on “electioneering communications.” Since December 2007, it has been engaged in a court battle with the FEC over Sections 203, 201 and 311. At the center of the fight is a Citizens United film about Sen. Hillary Rodham Clinton, a Democratic presidential candidate, titled “Hillary: The Movie.”

The feature-length movie has been described by Citizens United in court papers this way: it “includes interviews with numerous individuals and many scenes of Senator Clinton at public appearances. It is about 90 minutes in length. It does not expressly advocate Senator Clinton’s election or defeat, but it discusses her Senate record, her White House record during President Bill Clinton’s presidency, and her presidential bid.”

The film actually has been shown in movie theaters, and has circulated at retail in a DVD format. Citizens United prepared three TV ads to promote the movie. The group planned to broadcast one of the ads on Fox News cable network, and on other TV networks. It planned to air two of the ads on other networks, but not on Fox. It planned to do so in what it called a “rollout advertising blitz” timed to coincide with public release of the movie in January of last year. It also had a plan to market the movie via video-on-demand on cable TV.

The ads, however, appeared to come under the federal law’s definition as “electioneering communications,” because the group was planning to air them while the presidential primary election season was unfolding. So Citizens United went to court, seeking to bar the FEC from banning the broadcast of the movie and of the ads, and from enforcing the disclosure and disclaimer rules. Among its other arguments, it contended that the movie was not an electioneering communication within the meaning of Section 203 — it did not advocate a vote for or against Sen. Clinton — and that, if it was, the Section was unconstitutional because it interfered with political speech. A U.S. District Court refused to issue a preliminary order protecting the movie and the ads from regulation by FEC. Citizens United tried to take the issue to the Supreme Court, but the Justices summarily dismissed its appeal for lack of jurisdiction on March 24 of last year (docket 07-953). (Justice Stephen G. Breyer noted that he would have upheld the District Court decision.)

The case then returned to District Court, leading to a final ruling last July on the merits, finding the movie to be covered by Section 203. That court said that the movie could not be interpreted as anything other than a message that Sen. Clinton was unfit for office, that the country would be a dangerous place if she were elected, and that viewers of the movie should vote against her.

While the promotional ads could not be barred, the District Court found, Citizens United would have to obey the disclosure and disclaimer requirements for those ads. (Because both of the District Court rulings were by three-judge courts, appeals from those decisions went directly to the Supreme Court.) Citizens United then returned to the Supreme Court.....

corp personhood: http://www.scotusblog.com/?p=15376

Lyle Denniston Reporter

Analysis: The personhood of corporations

General Motors might already be halfway to winning its lawsuit. It has been understood, for decades, that corporations are “persons” under the Constitution. And nothing the Supreme Court said Thursday undermined that notion. If anything, the decision in Citizens United v. Federal Election Commission conferred new dignity on corporate “persons,” treating them — under the First Amendment free-speech clause — as the equal of human beings.

At least in politics, the Court majority indicated, corporations have a voice, and they have worthy political ideas. Here is the way Justice Anthony M. Kennedy put it (partially quoting from an earlier ruling): “Corporations and other associations, like individuals, contribute to the ‘discussion, debate, and the dissemination of information and ideas’ that the First Amendment seeks to foster.”

...

Justice Stevens, writing for the dissenters, turned Chief Justice John Marshall’s celebrated comment in the Dartmouth College case — in a ruling that actually favored the corporate form — into a belittling comment: “A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it.”

In vivid contrast, the majority overruled a 19-year-old precedent (Austin v. Michigan Chamber of Commerce) that had lambasted the corporation, when it entered the political arena, because of ”the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas.” That, the Court had said in 1990, was a form of corruption that legislators could use as the basis for singling out corporations for restrictions on their political activity. The overruling may have been intended, in part, to scuttle that image.

The rehabilitation of the corporate “person” almost certainly was a project that five of the Justices were prepared to embrace. It could be argued, indeed, that the Court put the case over to the current Term for a second argument, focused on corporation’s rights under the Constitution, as part of that project. There was not a hint that those five, in the end, were in any way moved by the suggestion at that second argument by Justice Sonia Sotomayor that the Court may have been wrong for a century about awarding “personhood” to corporations.

The majority put aside the dissenting opinion’s repeated mentions of the special favors that the corporate form gets, treating those as a completely inadequate foundation for treating corporations differently as political citizens. And Justice Antonin Scalia, in a separate opinion buttressing the majority ruling, went to considerable lengths to enhance the constitutional pedigree of corporations’ rights and to denounce the dissenters’ suggestion that the Founders did not think highly of corporations.

The question now arises whether the enhanced legal stature of corporations will make a difference in other fields of constitutional law. One might suggest that corporations have already benefited from greater sympathy from the current Court — for example, in constitutional limitations on the size of punitive damages that juries may assess for corporate wrongdoing. And, this Term, there seems to be quite a realistic prospect that the Court, applying the Due Process Clause, may limit the scope of the federal criminal fraud laws when an executive of a corporation is accused of depriving the shareholders of “honest services.”

Going further, one might speculate whether it would be worth starting a lawsuit to test some of the restraints that states impose on corporations as conditions in their charters, in an effort to further liberate the corporate form. Or, perhaps, one might anticipate a lawsuit if, as is already being suggested in some quarters, that Congress might respond to the Citizens United ruling by passing a law to require corporations operating in interstate commerce to be federally chartered, and decreeing that, as such, they are not “persons” with constitutional rights.

===

Scalia U of Chic, AEI. Asst AG for RMN; 1st fac adv to FedSoc (now put on resumes); pal of DC a refused to recuse himse;lf on energy task force secrecy (had defended exec priv under Ford); "the intellectual anchor of the court's conservative majority"; Roberts and Alito, however, are younger men who take an originalist approach. attended Koch events (funds FREE)

Kennedy: rec by RR, appt by Ford; took Powell's place after Bork failed; often swing vote; pro gun anti envir.; tho upheld partial abortion ban not strong enough on that and gays, so had FedSoc handlers?!

If Kennedy is tentative this morning (knows he's on thin ice) and Stevens (89? got gavelled down?!) is horrified, Justices Antonin Scalia and Clarence Thomas say nothing at all. They don't have to: They're the architects of the edifice Kennedy has erected. Reading from his dissent, Stevens describes their "sweeping" attacks on Michigan's campaign finance law in Austin v. Michigan Chamber of Commerce (one of the cases overruled today) as "having planted the seed that flowered" into today's majority opinion.

Clarence Thomas: Lawyer for Monsanto; attended Koch events (FREE funder). Boosted corp personhood in the decision; did not recuse himself from ruling on health care, tho Heritage paid wife large sums and opposed it.(no oversight on recusal; it's the honor system?!); ayn rand fan; B2 pressured ABA to give good rating (got lowest good rating)

Ginny

While Thomas was well-known in conservative circles as an aide to former House Majority Leader Dick Armey, as a midlevel staffer at the U.S. Chamber of Commerce and at The Heritage Foundation (big opponent of Obamacare) and as the spouse of one of the court's most conservative justices, she did not draw much attention until 2009, when she started speaking at tea party rallies. She was a lobbyist when they met; her new firm advises clients how to spend political funds, thus directly benefitting fron CU. Worked with Dick Armey on defund the left. Worked for US CoC, opposed family leave. Repeated conflicts of interest.

At the time the group was formed in January 2010, legal ethicists pointed to the fact that Thomas' husband had sided with the majority in the Citizens United decision, in effect making it possible for Liberty Central to operate with unlimited funding from secret donors. Further questions arose in July 2010 when POLITICO revealed that Liberty Central had received an anonymous $550,000 donation while Justice Thomas and the U.S. Supreme Court were deliberating over the case. [6] ? Kenneth Vogel, Secret donors makes Thomas's wife's group a tea party player, POLITICO, July 6, 2010.

9/29/11 The letter outlines how, throughout his 20-year tenure on the Supreme Court, Thomas routinely checked a box titled "none" on his annual financial disclosure forms, indicating that his wife had received no income. But in reality, the letter states, she earned nearly $700,000 from the Heritage Foundation from 2003 to 2007 alone...The letter also cites a June report in The New York Times indicating Thomas may have regularly benefited from the use of a private yacht and airplane owned by real estate magnate Harlan Crow[e] and failed to disclose the travel as a gift or travel reimbursement.

K street

In early 1995, Jeff Shear wrote in the National Journal and subsequently the Baltimore Sun of a Republican project - later to be dubbed the K Street project - being co-ordinated out of the office of House Majority Leader Dick Armey. Heading the project was Virginia Thomas (wife of Supreme Court Justice Clarence Thomas), which also involved Scott Hodges the Heritage Foundation's budget director. One of those involved in the project, conservative activists Grover Norquist, told Shear "we will hunt [these liberal groups] down one by one and extinguish their funding sources".

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Maddow public cit found on 2008 tax forms? 4 days $ from FedSoc (gets koch $) http://www.youtube.com/watch?v=wO2A4ubkXTo claims "brief drop -by" at palm Spr mtg (6 talks also in 09); koch ran 1 mil in ads on energy/GW [9 of 12 gop on house energy cvomm signed koch pledge ~ GHG and EPA] for 5 yrs CT did not disclose any of his wife's income (on what?), corrected when busted. Common cause asked for explanation. sup Ct has no ethics rules? assumed to not need them. CU extraord session in Sept. Liberty Central. Form too complicated (just a box to check?)

Roberts

Consulted w/ Jeb on Florida recount (maybe more?) clerked for rehnquist, hored by starr to work for WF Smith, RR atty gen?ten again when starr became b1` atty gen; nom for circuit judge but dems wd not vote on it; b2 nom. used idea of "standing " to limit judiciary; tends to defend exec power; some of his ~ affirm action writing went missing from RR library during confirmation; anti labor

" Roberts’s hard-edged performance at oral argument offers more than just a rhetorical contrast to the rendering of himself that he presented at his confirmation hearing. “Judges are like umpires,” Roberts said at the time. “Umpires don’t make the rules. They apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ballgame to see the umpire.” His jurisprudence as Chief Justice, Roberts said, would be characterized by “modesty and humility.” After four years on the Court, however, Roberts’s record is not that of a humble moderate but, rather, that of a doctrinaire conservative. The kind of humility that Roberts favors reflects a view that the Court should almost always defer to the existing power relationships in society. In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff. Even more than Scalia, who has embodied judicial conservatism during a generation of service on the Supreme Court, Roberts has served the interests, and reflected the values, of the contemporary Republican Party...."

5) ALITO: originalist, (w/ Roberts and scalia; Meese?) ; woman must tell husband on abortion; Am Specator, Gillespie, Intercoll Stud Inst (prolly just a speech?), Norquist booster

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DISSENT: A dissenting opinion by Justice Stevens[25] was joined by Justice Ginsburg, Justice Breyer, and Justice Sotomayor.

Activist (tho Roberts pledged not to be in confirmation hearings) because they could have ruled narrowly, but chose to broaden the case.

OVERTURNED PRECEDENTS

In its January 21 decision, the court overruled two previous decisions that upheld the government's right to limit certain types of corporate political advocacy — the 1990 decision in Austin v. Michigan State Chamber of Commerce, which upheld a Michigan state law, and the 2003 decision in McConnell v. Federal Election Commission, which upheld McCain-Feingold.

Buckley v. Valeo, its 1976 decision allowing public financing

McCain: Bipartisan Campaign Reform Act of 2002 (BCRA), federal law prohibits corporations and unions from using their general treasury funds to make independent expenditures for speech that is an “electioneering communication” or for speech that expressly advocates the election or defeat of a candidate

McConnell

1990 case Austin v. Michigan Chamber of Commerce, which upheld limits on corporate spending in candidate elections

EXTENDS? Bellotti v. First National Bank of Boston

Montana = CU2 thus state and local

POSSIBLE FUTURE EXTENSIONS

slate:

Not to be overlooked are the legal aftershocks of the case. The Supreme Court is now contemplating the corporation-as-person issue, raised so famously in Citizens United, in a case where telecommunications giant AT&T aims to prevent the federal government from obtaining company information under the Freedom of Information Act.

The act exempts the release of information that would violate "personal privacy," and AT&T claims the government's request would do just that, though most people would hardly call AT&T a "person." As US Solicitor General Neil Katyal put it, "A corporation itself can no more be embarrassed, harassed, or stigmatized than a stone." But in the wake of Citizens United, outsiders wait nervously to see how the Supreme Court takes on "corporate personhood" this time.

Post-Citizens United legal battles could also chip away at the campaign-finance laws left standing. In one ongoing suit, two foreign nationals—in this case, Canadian citizens living in the US—are challenging the so-called Alien Gag law, a part of the McCain-Feingold Act of 2002 that prevents foreign nationals or sovereign-wealth funds from donating to American political campaigns. In short, it's what prevents China from directly influencing American elections. On January 13, a federal judge ruled that two plaintiffs had the right to challenge the act. And while Fred Wertheimer, who runs the reform group Democracy 21, says the challenge isn't much cause for concern, he adds, "I'm not predicting anything."

Also on the Supreme Court's to-do list is Davis v. Federal Election Commission, a case involving Arizona's public-trigger mechanism—the point at which a publicly financed candidate receives additional funds. Conservatives argue that these mechanisms, which kick in when the war chest of the candidate's privately financed opponent surpasses certain thresholds, stifle free speech.

What worries reform advocates is that the Davis case could be used to scrap public campaign financing altogether. Wertheimer, an avowed supporter of publically financed elections, says he doubts the high court would overturn Buckley v. Valeo, its 1976 decision allowing public financing, but "always, given Citizens United, we live to wait and see what this [Supreme Court] is going to do."

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CU But even disclosure provisions have their detractors. Justice Clarence Thomas, while concurring with the overall ruling in Citizens United, wrote in his opinion that the Court did not go far enough, and that the "disclosure, disclaimer, and reporting requirements" in the Bipartisan Campaign Reform Act (McCain-Feingold) are also unconstitutional. He worries about the threat of retaliation from angry citizens or lawmakers. According to Justice Thomas, by forcing the funders to submit themselves to possible retaliation, mandatory disclosure laws chill free speech.

Though courts have generally been friendlier to disclosure requirements than outright bans, the issue may come before the Supreme Court again. Attorney James Bopp, Jr., a primary architect of the Citizens United case, whose stated goal is to strip away every type of regulation on political spending, has set his sites next on disclosure, telling THE NEW YORK TIMES, "Groups have to be relieved of reporting their donors if lifting the prohibition on their political speech is going to have any meaning." You can read more about James Bopp, Jr. and his views here....

Foreign Influence

A related question is that of foreign participation in elections. Current law bars foreign nationals from contributing to federal campaign committees. The Citizens United ruling raises questions as to whether foreign-controlled corporations or corporations with foreign shareholders have a right to spend money on political speech. Several members of Congress have introduced bills to prohibit foreign money from making its way into U.S. elections through corporate speech.

Public Financing

In its 1976 opinion in the case Buckley v. Valeo, the Supreme Court set the precedent that restricting money spent on elections is a restriction on speech, and therefore a violation of the First Amendment. Many reformers are looking for alternate approaches to decrease the influence of money on the political process.

One way to level the playing field without restricting spending is voluntary public financing of campaigns. A "clean money" system resembling those already in place in seven states and two cities is now being considered in Congress. The system of voluntary public financing has survived several challenges in court, and has become the preferred system for many clean government advocates.

Some versions of the clean money system do face legal challenges, specifically those that offer matching funds to candidates in response to independent expenditures. Public Campaign outlines the legal challenges to campaign finance laws and public financing here.

Moyers http://www.pbs.org/moyers/journal/02192010/citizensunited.html

BACKGROUND

Powell Memo:

Citzens United (one of a host of fake grassroots organizations--astroturf-- with noble or innocuous names--

SUPREME COURT OF THE UNITED STATES

CITIZENS UNITED v . FEDERAL ELECTION COMMISSION

appeal from the united states district court for the district of columbia

No. 08–205.?Argued March 24, 2009—Reargued September 9, 2009––Decided January 21, 2010

As amended by §203 of the Bipartisan Campaign Reform Act of 2002 (BCRA), federal law prohibits corporations and unions from using their general treasury funds to make independent expenditures for speech that is an “electioneering communication” or for speech that expressly advocates the election or defeat of a candidate. 2 U. S. C. §441b. An electioneering communication is “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 election, §434(f)(3)(A), and that is “publicly distributed,” 11 CFR §100.29(a)(2), which in “the case of a candidate for nomination for President … means” that the communication “[c]an be received by 50,000 or more persons in a State where a primary election … is being held within 30 days,” §100.29(b)(3)(ii). Corporations and unions may establish a political action committee (PAC) for express advocacy or electioneering communications purposes. 2 U. S. C. §441b(b)(2). In McConnell v. Federal Election Comm’n , 540 U. S. 93 , this Court upheld limits on electioneering communications in a facial challenge, relying on the holding in Austin v. Michigan Chamber of Commerce , 494 U. S. 652 , that political speech may be banned based on the speaker’s corporate identity.

In January 2008, appellant Citizens United, a nonprofit corporation, released a documentary (hereinafter Hillary ) critical of then-Senator Hillary Clinton, a candidate for her party’s Presidential nomination. Anticipating that it would make Hillary available on cable television through video-on-demand within 30 days of primary elections, Citizens United produced television ads to run on broadcast and cable television. Concerned about possible civil and criminal penalties for violating §441b, it sought declaratory and injunctive relief, arguing that (1) §441b is unconstitutional as applied to Hillary; and (2) BCRA’s disclaimer, disclosure, and reporting requirements, BCRA §§201 and 311, were unconstitutional as applied to Hillary and the ads. The District Court denied Citizens United a preliminary injunction and granted appellee Federal Election Commission (FEC) summary judgment.

Held:

1. Because the question whether §441b applies to Hillary cannot be resolved on other, narrower grounds without chilling political speech, this Court must consider the continuing effect of the speech suppression upheld in Austin . Pp. 5–20.

(a) Citizen United’s narrower arguments—that Hillary is not an “electioneering communication” covered by §441b because it is not “publicly distributed” under 11 CFR §100.29(a)(2); that §441b may not be applied to Hillary under Federal Election Comm’n v. Wisconsin Right to Life, Inc. , 551 U. S. 449 (WRTL), which found §441b unconstitutional as applied to speech that was not “express advocacy or its functional equivalent,” id., at 481 (opinion of Roberts , C. J.), determining that a communication “is the functional equivalent of express advocacy only if [it] is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate,” id. , at 469–470; that §441b should be invalidated as applied to movies shown through video-on-demand because this delivery system has a lower risk of distorting the political process than do television ads; and that there should be an exception to §441b’s ban for nonprofit corporate political speech funded overwhelming by individuals—are not sustainable under a fair reading of the statute. Pp. 5–12.

(b) Thus, this case cannot be resolved on a narrower ground without chilling political speech, speech that is central to the First Amendment’s meaning and purpose. Citizens United did not waive this challenge to Austin when it stipulated to dismissing the facial challenge below, since (1) even if such a challenge could be waived, this Court may reconsider Austin and §441b’s facial validity here because the District Court “passed upon” the issue, Lebron v. National Railroad Passenger Corporation , 513 U. S. 374 ; (2) throughout the litigation, Citizens United has asserted a claim that the FEC has violated its right to free speech; and (3) the parties cannot enter into a stipulation that prevents the Court from considering remedies necessary to resolve a claim that has been preserved. Because Citizen United’s narrower arguments are not sustainable, this Court must, in an exercise of its judicial responsibility, consider §441b’s facial validity. Any other course would prolong the substantial, nationwide chilling effect caused by §441b’s corporate expenditure ban. This conclusion is further supported by the following: (1) the uncertainty caused by the Government’s litigating position; (2) substantial time would be required to clarify §441b’s application on the points raised by the Government’s position in order to avoid any chilling effect caused by an improper interpretation; and (3) because speech itself is of primary importance to the integrity of the election process, any speech arguably within the reach of rules created for regulating political speech is chilled. The regulatory scheme at issue may not be a prior restraint in the strict sense.

However, given its complexity and the deference courts show to administrative determinations, a speaker wishing to avoid criminal liability threats and the heavy costs of defending against FEC enforcement must ask a governmental agency for prior permission to speak. The restrictions thus function as the equivalent of a prior restraint, giving the FEC power analogous to the type of government practices that the First Amendment was drawn to prohibit. The ongoing chill on speech makes it necessary to invoke the earlier precedents that a statute that chills speech can and must be invalidated where its facial invalidity has been demonstrated. Pp. 12–20.

     :{2.  Austin is overruled, and thus provides no basis for allowing the Government to limit corporate independent expenditures. Hence, §441b’s restrictions on such expenditures are invalid and cannot be applied to Hillary. Given this conclusion, the part of McConnell that upheld BCRA §203’s extension of §441b’s restrictions on independent corporate expenditures is also overruled. Pp. 20–51.:(style="font-family:Merriweather")::(style="font-family:Merriweather"):}:

          :{(a) Although the First Amendment provides that “Congress shall make no law … abridging the freedom of speech,” §441b’s prohibition on corporate independent expenditures is an outright ban on speech, backed by criminal sanctions. It is a ban notwithstanding the fact that a PAC created by a corporation can still speak, for a PAC is a separate association from the corporation. Because speech is an essential mechanism of democracy—it is the means to hold officials accountable to the people—political speech must prevail against laws that would suppress it by design or inadvertence. Laws burdening such speech are subject to strict scrutiny, which requires the Government to prove that the restriction “furthers a compelling interest and is narrowly tailored to achieve that interest.” WRTL, 551 U. S., at 464. This language provides a sufficient framework for protecting the interests in this case. Premised on mistrust of governmental power, the First Amendment stands against attempts to disfavor certain subjects or viewpoints or to distinguish among different speakers, which may be a means to control content. The Government may also commit a constitutional wrong when by law it identifies certain preferred speakers. There is no basis for the proposition that, in the political speech context, the Government may impose restrictions on certain disfavored speakers. Both history and logic lead to this conclusion. Pp. 20–25.:(style="font-family:Merriweather")::(style="font-family:Merriweather"):}:

          :{(b) The Court has recognized that the First Amendment applies to corporations, e.g., First Nat. Bank of Boston v. Bellotti , 435 U. S. 765 , and extended this protection to the context of political speech, see, e.g., NAACP v. Button , 371 U. S. 415 . Addressing challenges to the Federal Election Campaign Act of 1971, the Buckley Court upheld limits on direct contributions to candidates, 18 U. S. C. §608(b), recognizing a governmental interest in preventing quid pro quo corruption. 424 U. S., at 25–26. However, the Court invalidated §608(e)’s expenditure ban, which applied to individuals, corporations, and unions, because it “fail[ed] to serve any substantial governmental interest in stemming the reality or appearance of corruption in the electoral process,” id. , at 47–48. While Buckley did not consider a separate ban on corporate and union independent expenditures found in §610, had that provision been challenged in Buckley ’s wake, it could not have been squared with the precedent’s reasoning and analysis. The Buckley Court did not invoke the overbreadth doctrine to suggest that §608(e)’s expenditure ban would have been constitutional had it applied to corporations and unions but not individuals. Notwithstanding this precedent, Congress soon recodified §610’s corporate and union expenditure ban at 2 U. S. C. §441b, the provision at issue. Less than two years after Buckley, Bellotti reaffirmed the First Amendment principle that the Government lacks the power to restrict political speech based on the speaker’s corporate identity. 435 U.S., at 784–785. Thus the law stood until Austin upheld a corporate independent expenditure restriction, bypassing Buckley and Bellotti by recognizing a new governmental interest in preventing “the corrosive and distorting effects of immense aggregations of [corporate] wealth … that have little or no correlation to the public’s support for the corporation’s political ideas.” 494 U. S., at 660. Pp. 25–32.:(style="font-family:Merriweather")::(style="font-family:Merriweather"):}:

          :{(c) This Court is confronted with conflicting lines of precedent: a pre- Austin line forbidding speech restrictions based on the speaker’s corporate identity and a post- Austin line permitting them. Neither Austin ’s antidistortion rationale nor the Government’s other justifications support §441b’s restrictions. Pp. 32–47.:(style="font-family:Merriweather")::(style="font-family:Merriweather"):}:

               :{(1) The First Amendment prohibits Congress from fining or jailing citizens, or associations of citizens, for engaging in political speech, but Austin ’s antidistortion rationale would permit the Government to ban political speech because the speaker is an association with a corporate form. Political speech is “indispensable to decisionmaking in a democracy, and this is no less true because the speech comes from a corporation.” Bellotti, supra, at 777 (footnote omitted). This protection is inconsistent with Austin ’s rationale, which is meant to prevent corporations from obtaining “ ‘an unfair advantage in the political marketplace’ ” by using “ ‘resources amassed in the economic marketplace.’ ” 494 U. S., at 659. First Amendment protections do not depend on the speaker’s “financial ability to engage in public discussion.” Buckley , supra, at 49. These conclusions were reaffirmed when the Court invalidated a BCRA provision that increased the cap on contributions to one candidate if the opponent made certain expenditures from personal funds. Davis v. Federal Election Comm’n , 554 U. S. ___, ___. Distinguishing wealthy individuals from corporations based on the latter’s special advantages of, e.g., limited liability, does not suffice to allow laws prohibiting speech. It is irrelevant for First Amendment purposes that corporate funds may “have little or no correlation to the public’s support for the corporation’s political ideas.” Austin, supra, at 660. All speakers, including individuals and the media, use money amassed from the economic marketplace to fund their speech, and the First Amendment protects the resulting speech. Under the antidistortion rationale, Congress could also ban political speech of media corporations. Although currently exempt from §441b, they accumulate wealth with the help of their corporate form, may have aggregations of wealth, and may express views “hav[ing] little or no correlation to the public’s support” for those views. Differential treatment of media corporations and other corporations cannot be squared with the First Amendment , and there is no support for the view that the Amendment’s original meaning would permit suppressing media corporations’ political speech. Austin interferes with the “open marketplace” of ideas protected by the First Amendment . New York State Bd. of Elections v. Lopez Torres , 552 U. S. 196 . Its censorship is vast in its reach, suppressing the speech of both for-profit and nonprofit, both small and large, corporations. Pp. 32–40.:(style="font-family:Merriweather")::(style="font-family:Merriweather"):}:

               :{(2) This reasoning also shows the invalidity of the Government’s other arguments. It reasons that corporate political speech can be banned to prevent corruption or its appearance. The Buckley Court found this rationale “sufficiently important” to allow contribution limits but refused to extend that reasoning to expenditure limits, 424 U.S., at 25, and the Court does not do so here. While a single Bellotti footnote purported to leave the question open, 435 U. S., at 788, n. 26, this Court now concludes that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption. That speakers may have influence over or access to elected officials does not mean that those officials are corrupt. And the appearance of influence or access will not cause the electorate to lose faith in this democracy. Caperton v. A. T. Massey Coal Co. , 556 U. S. ___, distinguished. Pp. 40–45.:(style="font-family:Merriweather")::(style="font-family:Merriweather"):}:

               :{(3) The Government’s asserted interest in protecting shareholders from being compelled to fund corporate speech, like the antidistortion rationale, would allow the Government to ban political speech even of media corporations. The statute is underinclusive; it only protects a dissenting shareholder’s interests in certain media for 30 or 60 days before an election when such interests would be implicated in any media at any time. It is also overinclusive because it covers all corporations, including those with one shareholder. P. 46.:(style="font-family:Merriweather")::(style="font-family:Merriweather"):}:

                    :{(4) Because §441b is not limited to corporations or associations created in foreign countries or funded predominately by foreign shareholders, it would be overbroad even if the Court were to recognize a compelling governmental interest in limiting foreign influence over the Nation’s political process. Pp. 46–47.:(style="font-family:Merriweather")::(style="font-family:Merriweather"):}:

          :{(d) The relevant factors in deciding whether to adhere to stare decisis, beyond workability—the precedent’s antiquity, the reliance interests at stake, and whether the decision was well reasoned—counsel in favor of abandoning Austin, which itself contravened the precedents of Buckley and Bellotti. As already explained, Austin was not well reasoned. It is also undermined by experience since its announcement. Political speech is so ingrained in this country’s culture that speakers find ways around campaign finance laws. Rapid changes in technology—and the creative dynamic inherent in the concept of free expression—counsel against upholding a law that restricts political speech in certain media or by certain speakers. In addition, no serious reliance issues are at stake. Thus, due consideration leads to the conclusion that Austin should be overruled. The Court returns to the principle established in Buckley and Bellotti that the Government may not suppress political speech based on the speaker’s corporate identity. No sufficient governmental interest justifies limits on the political speech of nonprofit or for-profit corporations. Pp. 47–50.:(style="font-family:Merriweather")::(style="font-family:Merriweather"):}:

     :{3. BCRA §§201 and 311 are valid as applied to the ads for Hillary and to the movie itself. Pp. 50–57.:(style="font-family:Merriweather")::(style="font-family:Merriweather"):}:

          :{(a) Disclaimer and disclosure requirements may burden the ability to speak, but they “impose no ceiling on campaign-related activities,” Buckley , 424 U. S., at 64, or “ ‘ “prevent anyone from speaking,” ’ ” McConnell , supra , at 201. The Buckley Court explained that disclosure can be justified by a governmental interest in providing “the electorate with information” about election-related spending sources. The McConnell Court applied this interest in rejecting facial challenges to §§201 and 311. 540 U. S., at 196. However, the Court acknowledged that as-applied challenges would be available if a group could show a “ ‘reasonable probability’ ” that disclosing its contributors’ names would “ ‘subject them to threats, harassment, or reprisals from either Government officials or private parties.’ ” Id., at 198. Pp. 50–52.:(style="font-family:Merriweather")::(style="font-family:Merriweather"):}:

          :{(b) The disclaimer and disclosure requirements are valid as applied to Citizens United’s ads. They fall within BCRA’s “electioneering communication” definition: They referred to then-Senator Clinton by name shortly before a primary and contained pejorative references to her candidacy. Section 311 disclaimers provide information to the electorate, McConnell, supra, at 196, and “insure that the voters are fully informed” about who is speaking, Buckley , supra , at 76. At the very least, they avoid confusion by making clear that the ads are not funded by a candidate or political party. Citizens United’s arguments that §311 is underinclusive because it requires disclaimers for broadcast advertisements but not for print or Internet advertising and that §311 decreases the quantity and effectiveness of the group’s speech were rejected in McConnell. This Court also rejects their contention that §201’s disclosure requirements must be confined to speech that is the functional equivalent of express advocacy under WRTL’ s test for restrictions on independent expenditures, 551 U. S., at 469–476 (opinion of R oberts , C.J.). Disclosure is the less-restrictive alternative to more comprehensive speech regulations. Such requirements have been upheld in Buckley and McConnell. Citizens United’s argument that no informational interest justifies applying §201 to its ads is similar to the argument this Court rejected with regard to disclaimers. Citizens United finally claims that disclosure requirements can chill donations by exposing donors to retaliation, but offers no evidence that its members face the type of threats, harassment, or reprisals that might make §201 unconstitutional as applied. Pp. 52–55.:(style="font-family:Merriweather")::(style="font-family:Merriweather"):}:

          :{(c) For these same reasons, this Court affirms the application of the §§201 and 311 disclaimer and disclosure requirements to Hillary . Pp. 55–56.:(style="font-family:Merriweather")::(style="font-family:Merriweather"):}:

Reversed in part, affirmed in part, and remanded.

     :{Kennedy, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia and Alito, JJ., joined, in which Thomas, J., joined as to all but Part IV, and in which Stevens, Ginsburg, Breyer, and Sotomayor, JJ., joined as to Part IV. Roberts, C. J., filed a concurring opinion, in which Alito, J., joined. Scalia, J., filed a concurring opinion, in which Alito, J., joined, and in which Thomas, J., joined in part. Stevens, J., filed an opinion concurring in part and dissenting in part, in which Ginsburg, Breyer , and Sotomayor, JJ., joined. Thomas, J., filed an opinion concurring in part and dissenting in part. :(style="font-family:Merriweather")::(style="font-family:Merriweather"):}:

===

M c CONNELL, UNITED STATES SENATOR, et al. v. FEDERAL ELECTION COMMISSION et al.

appeal from the united states district court for the district of columbia

No. 02–1674. Argued September 8, 2003—Decided December 10, 2003 *

The Bipartisan Campaign Reform Act of 2002 (BCRA), which amended the Federal Election Campaign Act of 1971 (FECA), the Communications Act of 1934, and other portions of the United States Code, is the most recent of nearly a century of federal enactments designed “to purge national politics of what [is] conceived to be the pernicious influence of ‘big money’ campaign contributions.” United States v. Automobile Workers, 352 U. S. 567. In enacting BCRA, Congress sought to address three important developments in the years since this Court’s landmark decision in Buckley v. Valeo, 424 U. S. 1 (per curiam): the increased importance of “soft money,” the proliferation of “issue ads,” and the disturbing findings of a Senate investigation into campaign practices related to the 1996 federal elections.

With regard to the first development, prior to BCRA, FECA’s disclosure requirements and source and amount limitations extended only to so-called “hard money” contributions made for the purpose of influencing an election for federal office. Political parties and candidates were able to circumvent FECA’s limitations by contributing “soft money”—money as yet unregulated under FECA—to be used for activities intended to influence state or local elections; for mixed-purpose activities such as get-out-the-vote (GOTV) drives and generic party advertising; and for legislative advocacy advertisements, even if they mentioned a federal candidate’s name, so long as the ads did not expressly advocate the candidate’s election or defeat. With regard to the second development, parties and candidates circumvented FECA by using “issue ads” that were specifically intended to affect election results, but did not contain “magic words,” such as “Vote Against Jane Doe,” which would have subjected the ads to FECA’s restrictions. Those developments were detailed in a 1998 Senate Committee Report summarizing an investigation into the 1996 federal elections, which concluded that the soft-money loophole had led to a meltdown of the campaign finance system; and discussed potential reforms, including a soft-money ban and restrictions on sham issue advocacy by nonparty groups.

Congress enacted many of the committee’s proposals in BCRA: Title I regulates the use of soft money by political parties, officeholders, and candidates; Title II primarily prohibits corporations and unions from using general treasury funds for communications that are intended to, or have the effect of, influencing federal election outcomes; and Titles III, IV, and V set out other requirements. Eleven actions challenging BCRA’s constitutionality were filed. A three-judge District Court held some parts of BCRA unconstitutional and upheld others. The parties challenging the law are referred to here as plaintiffs, and those who intervened in support of the law are intervenor-defendants.

Held : The judgment is affirmed in part and reversed in part.

251 F. Supp. 2d 176, 251 F. Supp. 2d 948, affirmed in part and reversed in part.

Justice Stevens and Justice O’Connor delivered the Court’s opinion with respect to BCRA Titles I and II, concluding that the statute’s two principal, complementary features—Congress’ effort to plug the soft-money loophole and its regulation of electioneering communications—must be upheld in the main. Pp. 23–118.

New FECA §323 survives plaintiffs’ facial First Amendment challenge. Pp. 23–77.

(a) In evaluating §323, the Court applies the less rigorous standard of review applicable to campaign contribution limits under Buckley and its progeny. Such limits are subject only to “closely drawn” scrutiny, see 424 U. S., at 25, rather than to strict scrutiny, because, unlike restrictions on campaign expenditures, contribution limits “entai[l] only a marginal restriction upon the contributor’s ability to engage in free communication,” e.g., id., at 20–21. Moreover, contribution limits are grounded in the important governmental interests in preventing “both the actual corruption threatened by large financial contributions and the eroding of public confidence in the electoral process through the appearance of corruption.” E.g., Federal Election Comm’n v. National Right to Work Comm., 459 U. S. 197. The less rigorous review standard shows proper deference to Congress’ ability to weigh competing constitutional interests in an area in which it enjoys particular expertise, and provides it with sufficient room to anticipate and respond to concerns about circumvention of regulations designed to protect the political process’ integrity. Finally, because Congress, in its lengthy deliberations leading to BCRA’s enactment, properly relied on Buckley and its progeny, stare decisis considerations, buttressed by the respect that the Legislative and Judicial Branches owe one another, provide additional powerful reasons for adhering to the analysis of contribution limits the Court has consistently followed since Buckley. The Court rejects plaintiffs’ argument that the type of speech and associational burdens that §323 imposes are fundamentally different from the burdens that accompanied Buckley ’s contribution limits. Pp. 24–32.

(b) New FECA §323(a)—which forbids national party committees and their agents to “solicit, receive, … direct … , or spend any funds … that are not subject to [FECA’s] limitations, prohibitions, and reporting requirements,” 2 U. S. C. A. §§441i(a)(1), (2)—does not violate the First Amendment. Pp. 32–52.

(1) The governmental interest underlying §323(a)—preventing the actual or apparent corruption of federal candidates and officeholders—constitutes a sufficiently important interest to justify contribution limits. That interest is not limited to the elimination of quid pro quo, cash-for-votes exchanges, see Buckley, supra , at 28, but extends also to “undue influence on an officeholder’s judgment, and the appearance of such influence,” Federal Election Comm’n v. Colorado Republican Federal Campaign Comm., 533 U. S. 431 (Colorado II) . These interests are sufficient to justify not only contribution limits themselves, but also laws preventing the circumvention of such limits. Id., at 456. While the quantum of empirical evidence needed to satisfy heightened judicial scrutiny of legislative judgments varies with the novelty or plausibility of the justification raised, Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, the idea that large contributions to a national party can corrupt or create the appearance of corruption of federal candidates and officeholders is neither novel nor implausible, see, e.g., Buckley , supra, at 38. There is substantial evidence in these cases to support Congress’ determination that such contributions of soft money give rise to corruption and the appearance of corruption. For instance, the record is replete with examples of national party committees’ peddling access to federal candidates and officeholders in exchange for large soft-money donations. Pp. 32–45.

(2) Section §323(a) is not impermissibly overbroad because it subjects all funds raised and spent by national parties to FECA’s hard-money source and amount limits, including, e.g., funds spent on purely state and local elections in which no federal office is at stake. The record demonstrates that the close relationship between federal officeholders and the national parties, as well as the means by which parties have traded on that relationship, have made all large soft-money contributions to national parties suspect, regardless of how those funds are ultimately used. The Government’s strong interests in preventing corruption, and particularly its appearance, are thus sufficient to justify subjecting all donations to national parties to FECA’s source, amount, and disclosure limitations. Pp. 45–47.

(3) Nor is §323(a)’s prohibition on national parties’ soliciting or directing soft-money contributions substantially overbroad. That prohibition’s reach is limited, in that it bars only soft-money solicitations by national party committees and party officers acting in their official capacities; the committees themselves remain free to solicit hard money on their own behalf or that of state committees and state and local candidates and to contribute hard money to state committees and candidates. Plaintiffs argue unpersuasively that the solicitation ban’s overbreadth is demonstrated by §323(e), which allows federal candidates and officeholders to solicit limited amounts of soft money from individual donors under certain circumstances. The differences between §§323(a) and 323(e) are without constitutional significance, see National Right to Work , 459 U. S., at 210, reflecting Congress’ reasonable and expert judgments about national committees’ functions and their interactions with officeholders. Pp. 47–48.

(4) Section 323(a) is not substantially overbroad with respect to the speech and associational rights of minor parties, even though the latter may have slim prospects for electoral success. It is reasonable to require that all parties and candidates follow the same rules designed to protect the electoral process’s integrity. Buckley, 424 U. S., at 34–35. A nascent or struggling minor party can bring an as-applied challenge if §323(a) prevents it from amassing the resources necessary to engage in effective advocacy. Id., at 21. Pp. 48–51.

(5) Plaintiffs’ argument that §323(a) unconstitutionally interferes with the ability of national committees to associate with state and local committees is unpersuasive because it hinges on an unnaturally broad reading of the statutory terms “spend,” “receive,” “direct,” and “solicit.” Nothing on §323(a)’s face prohibits national party officers from sitting down with state and local party committees or candidates to plan and advise how to raise and spend soft money, so long as the national officers do not personally spend, receive, direct, or solicit soft money. Pp. 51–52.

(c) On its face, new FECA §323(b)—which prohibits state and local party committees from using soft money for activities affecting federal elections, 2 U. S. C. A. §442i(b)—is closely drawn to match the important governmental interest of preventing corruption and its appearance. Pp. 52–66.

(1) Recognizing that the close ties between federal candidates and state party committees would soon render §323(a)’s anticorruption measures ineffective if state and local committees remained available as a conduit for soft-money donations, Congress designed §323(b) to prevent donors from contributing nonfederal funds to such committees to help finance “Federal election activity,” which is defined to encompass (1) voter registration activity during the 120 days before a federal election; (2) voter identification, GOTV, and generic campaign activity “conducted in connection with an election in which a [federal] candidate … appears on the ballot”; (3) any “public communication” that “refers to a clearly identified [federal] candidate” and “promotes,” “supports,” “attacks,” or “opposes” such a candidate; and (4) the services of a state committee employee who dedicates more than 25% of his or her compensated time to “activities in connection with a Federal election,” 2 U. S. C. A. §§431(20)(A)(i–iv). All activities that fall within this definition must be funded with hard money. §441i(b)(1). The Levin Amendment carves out an exception to this general rule, allowing state and local party committees to pay for certain federal election activities—namely, activities falling within categories (1) and (2) above that either do not refer to “a clearly identified candidate for Federal office,” or, if they involve broadcast communications, refer “solely to a clearly identified candidate for State or local office,” §§441i(b)(2)(B)(i)–(ii)—with an allocated ratio of hard money and so-called “Levin funds.” Levin funds are subject only to state regulation, but for two additional restrictions. First, no contributor can donate more than $10,000 per year to a single committee’s Levin account. §441i(b)(2)(B)(iii). Second, both Levin funds and the allocated portion of hard money to pay for such activities must be raised by the state or local committee that spends them, though the committee can team up with other national, state, or local committees to solicit the hard-money portion. §§441i(b)(2)(B)(iv), 441i(b)(2)(C). Pp. 52–55.

(2) In addressing soft-money contributions to state committees, Congress both drew a conclusion and made a prediction. It concluded from the record that soft money’s corrupting influence insinuates itself into the political process not only through national party committees, but also through state committees, which function as an alternate avenue for precisely the same corrupting forces. Indeed, the evidence shows that both candidates and parties already ask donors who have reached their direct contribution limit to donate to state committees. Congress’ reasonable prediction, based on the history of campaign finance regulation, was that donors would react to §323(a) by directing soft-money contributions to state committees for the purpose of influencing federal candidates and elections, and that federal candidates would be just as indebted to these contributors as they had been to those who had formerly contributed to the national parties. Preventing corrupting activity from shifting wholesale to state committees and thereby eviscerating FECA clearly qualifies as an important governmental interest. Pp. 55–57.

(3) Plaintiffs argue unpersuasively that, even if §323(b) serves a legitimate interest, its restrictions are so unjustifiably burdensome and overbroad that they cannot be considered “closely drawn” to match the Government’s objectives. Pp. 57–66.

(i) Section 323(b) is not substantially overbroad. Although §323(b) captures some activities that affect state campaigns for nonfederal offices, these are the same activities that were covered by the FEC’s pre-BCRA allocation rules, and so had to be funded in part by hard money because they affected both federal and state elections. As a practical matter, BCRA merely codifies the FEC’s allocation regime principles while justifiably adjusting the applicable formulas in order to restore the efficacy of FECA’s longstanding restriction on contributions to state and local committees for the purpose of influencing federal elections. By limiting its reach to “Federal election activities,” §323(b) is narrowly focused on regulating contributions that directly benefit federal candidates and thus pose the greatest risk of corruption or its appearance. The first two categories of “Federal election activity”—voter registration efforts and voter identification, GOTV, and generic campaign activities conducted in connection with a federal election—clearly capture activities that confer a substantial benefit on federal candidates by getting like-minded voters to the polls. If a voter registration drive does not specifically mention a federal candidate, state committees can take advantage of the Levin Amendment’s higher contribution limits and relaxed source restrictions. Moreover, because the record demonstrates abundantly that the third category of “Federal election activity,” “public communication[s]” that promote or attack a federal candidate, directly affects the election in which that candidate is participating, application of §323(b)’s contribution caps to such communications is closely drawn to the anticorruption interest it is intended to address. Finally, Congress’ interest in preventing circumvention of §323(b)’s other restrictions justifies the requirement of the fourth category of “Federal election activity” that federal funds be used to pay any state or local party employee who spends more than 25% of his or her compensated time on activities connected with a federal election. Pp. 58–63.

(ii) The Levin Amendment does not unjustifiably burden association among party committees by forbidding transfers of Levin funds among state parties, transfers of hard money to fund the allocable federal portion of Levin expenditures, and joint fundraising of Levin funds by state parties. While preserving parties’ associational freedom is important, not every minor restriction on parties’ otherwise unrestrained ability to associate is of constitutional dimension. See Colorado II , 533 U. S., at 450, n. 11. Given the delicate and interconnected regulatory scheme at issue here, any associational burdens imposed by the Levin Amendment restrictions are far outweighed by the need to prevent circumvention of the entire scheme. Pp. 63–65.

(iii) The evidence supporting the argument that the Levin Amendment prevents parties from amassing the resources needed to engage in effective advocacy is speculative. The history of campaign finance regulation proves that political parties are extraordinarily flexible in adapting to new restrictions on their fundraising abilities. Moreover, the mere fact that §323(b) may reduce the money available to state and local parties to fund federal election activities is largely inconsequential. The question is not whether the amount available over previous election cycles is reduced, but whether the reduction is so radical as to drive the sound of the recipient’s voice below the level of notice. Shrink Missouri , 528 U. S., at 397. If state or local parties can make such a showing, as-applied challenges remain available. Pp. 65–66.

(d) New FECA §323(d)—which forbids national, state, and local party committees and their agents to “solicit any funds for, or make or direct any donations” to §501(c) tax exempt organizations that make expenditures in connection with a federal election, and to §527 political organizations “other than a political committee, a State, district, or local committee of a political party, or the authorized campaign committee of a candidate for State or local office,” 2 U. S. C. A. §441i(d)—is not facially invalid. Pp. 66–73.

(1) Section 323(d)’s restriction on solicitations is a valid anti-circumvention measure. Absent this provision, national, state, and local party committees would have significant incentives to mobilize their formidable fundraising apparatuses, including the peddling of access to federal officeholders, into the service of like-minded tax-exempt organizations that conduct activities benefiting their candidates. All of the corruption and the appearance of corruption attendant on the operation of those fundraising apparatuses would follow. Plaintiffs’ argument that §323(d)’s solicitations ban cannot be squared with §323(e), which allows federal candidates and officeholders to solicit limited soft-money donations to tax-exempt organizations engaged in federal election activities, is not persuasive. If §323(d)’s solicitation restriction is otherwise valid, it is not rendered unconstitutional by the mere fact that Congress chose not to regulate the activities of another group as stringently as it might have. See National Right to Work, 459 U. S., at 210. Furthermore, the difference between the two provisions is explained by the fact that national party officers, unlike federal candidates and officeholders, remain free to solicit soft money on behalf of nonprofit organizations in their individual capacities. Given §323(e)’s tight content, source, and amount restrictions on soft-money solicitations by federal candidates and officeholders, as well as the less rigorous standard of review, §323(e)’s greater solicitation allowances do not render §323(d)’s solicitation restriction facially invalid. Pp. 67–71.

(2) Section 323(d)’s restriction on donations to qualifying §501(c) or §527 organizations is a valid anticircumvention measure insofar as it prohibits donations of funds not already raised in compliance with FECA. Absent such a restriction, state and local party committees could accomplish directly what the antisolicitation restrictions prevent them from doing indirectly—raising large sums of soft money to launder through tax-exempt organizations engaging in federal election activities. Although the ban raises overbreadth concerns if read to restrict donations from a party’s federal account— i.e. , funds already raised in compliance with FECA’s source, amount, and disclosure limitations—these concerns do not require that the facial challenge be sustained, given this Court’s obligation to construe a statute, if possible, in such a way as to avoid constitutional questions, see, e.g., Crowell v. Benson , 285 U. S. 22. Because the record does not compel the conclusion that Congress intended “donations” to include donations from a party’s hard-money account, and because of the constitutional infirmities such an interpretation would raise, the Court narrowly construes §323(d)’s ban to apply only to donations of funds not raised in compliance with FECA. Pp. 71–73.

(e) New FECA §323(e)—which, with many exceptions, forbids federal candidates and officeholders to “solicit, receive, direct, transfer, or spend” soft money in connection with federal elections, 2 U. S. C. A. §441i(e)(1)(A), and limits their ability to do so for state and local elections, §441i(e)(1)(B)—does not violate the First Amendment. No party seriously questions the constitutionality of the general ban on soft-money donations directly to federal candidates and officeholders and their agents. By severing the most direct link to the soft-money donor, the ban is closely drawn to prevent the corruption or the appearance of corruption of federal candidates and officeholders. The solicitation restrictions are valid anticircumvention measures. Even before BCRA’s passage, federal candidates and officeholders solicited donations to state and local parties, as well as tax-exempt organizations, in order to help their own, as well as their party’s, electoral cause. See Colorado II , 533 U. S., at 458. The incentives to do so will only increase with Title I’s restrictions on the raising and spending of soft money by national, state, and local parties. Section 323(e) addresses these concerns while accommodating the individual speech and associational rights of federal candidates and officeholders. Pp. 74–77.

(f) New FECA §323(f)—which forbids state and local candidates or officeholders to raise and spend soft money to fund ads and other “public communications” that promote or attack federal candidates, 2 U. S. C. §442i(f)—is a valid anticircumvention provision. The section places no cap on the funds that such candidates can spend on any activity, but, rather, limits only the source and amount of contributions that they can draw on to fund expenditures that directly impact federal elections. And, by regulating only contributions used to fund “public communications,” the section focuses narrowly on those soft-money donations with the greatest potential to corrupt or give rise to the appearance of corruption of federal candidates and officeholders. Plaintiffs’ principal arguments against the section—(1) that the definition of “public communications” as communications that support or attack a clearly identified federal candidate is unconstitutionally vague and overbroad; and (2) that soft-money contributions to state and local candidates for “public communications” do not corrupt or appear to corrupt federal candidates—are rejected. Pp. 77–78.

Several plaintiffs argue unpersuasively that BCRA Title I exceeds Congress’ Election Clause authority to “make or alter” rules governing federal elections, U. S. Const., Art. I, §4, and violates constitutional federalism principles by impairing the States’ authority to regulate their own elections. In examining federal Acts for Tenth Amendment infirmity, the Court focuses on whether States and state officials are commandeered to carry out federal regulatory schemes. See, e.g., Printz v. United States , 521 U. S. 898. By contrast, Title I only regulates private parties’ conduct, imposing no requirements upon States or state officials. And, because it does not expressly pre-empt state legislation, Title I leaves States free to enforce their own restrictions on state electoral campaign financing. Moreover, while this Court has policed the absolute boundaries of Congress’ Article I power, see, e.g., United States v. Morrison, 529 U. S. 598, plaintiffs offer no reason to believe that Congress has overstepped its Elections Clause power in enacting BCRA. Indeed, as already found, Title I is closely drawn to match Congress’ important interest in preventing the corruption or the appearance of corruption of federal candidates and officeholders. That interest is sufficient to ground Congress’ exercise of its Elections Clause power. Pp. 79–80.

Also rejected is the argument that BCRA Title I violates equal protection by discriminating against political parties in favor of special interest groups, which remain free to raise soft money to fund voter registration, GOTV activities, mailings, and broadcast advertising (other than electioneering communications). First, BCRA actually favors political parties in many ways, e.g., by allowing party committees to receive individual contributions substantially exceeding FECA limits on contributions to nonparty political committees. More importantly, Congress is fully entitled to consider the salient, real-world differences between parties and interest groups when crafting a campaign finance regulation system, see National Right to Work , 459 U. S., at 210, including the fact that parties have influence and power in the legislature vastly exceeding any interest group’s. Taken seriously, plaintiffs’ equal protection arguments would call into question not just BCRA Title I, but much of FECA’s pre-existing structure. Pp. 82–85.

Accordingly, the judgment below is affirmed insofar as it upheld §§323(e) and 323(f) and reversed insofar as it invalidated §§323(a), 323(b), and 323(d). P. 82.

The District Court’s judgment is affirmed to the extent that it upheld the disclosure requirements in amended FECA §304 and rejected the facial attack on the provisions relating to donors of $1,000 or more, but reversed to the extent that it invalidated FECA §304(f)(5). Pp. 82–95.

(a) BCRA §201 comprehensively amends FECA §304, which requires political committees to file detailed periodic financial reports with the FEC. The narrowing construction adopted in Buckley limited FECA’s disclosure requirement to communications expressly advocating the election or defeat of particular candidates. BCRA adopts a new term, “electioneering communication,” which encompasses any “broadcast, cable, or satellite communication” that clearly identifies a candidate for federal office, airs within a specific time period ( e.g., within 60 days of a general election and 30 days of a primary), and is targeted to the relevant electorate. 2 U. S. C. A. §434(f)(3)(A)(i). BCRA also amends §304 to provide disclosure requirements for persons who fund electioneering communications (and BCRA §203 amends FECA §316(b)(2) to extend those requirements to corporations and labor unions).

Plaintiffs challenge the new term’s constitutionality as it applies to both disclosures and expenditures, arguing primarily that Buckley drew a constitutionally mandated line between express advocacy and so-called issue advocacy, and that speakers have an inviolable First Amendment right to engage in the latter category of speech. However, a plain reading of Buckley and Federal Election Comm’n v. Massachusetts Citizens for Life, Inc., 479 U. S. 238 (MCFL), shows that the express advocacy restriction is a product of statutory interpretation, not a constitutional command. Both the concept of express advocacy and the class of magic words were born of an effort to avoid constitutional problems of vagueness and overbreadth in the statute before the Buckley Court. Consistent with the principle that a constitutional rule should never be formulated more broadly than required by the facts to which it is to be applied, Buckley and MCFL were specific to the statutory language before the Court and in no way drew a constitutional boundary that forever fixed the permissible scope of provisions regulating campaign-related speech. The notion that the First Amendment erects a rigid barrier between express and issue advocacy also cannot be squared with this Court’s longstanding recognition that the presence or absence of magic words cannot meaningfully distinguish electioneering speech from a true issue ad. Buckley ’s express advocacy line has not aided the legislative effort to combat real or apparent corruption, and Congress enacted BCRA to correct the flaws it found. Finally, because the components of new FECA §304(f)(3)’s definition of “electioneering communication” are both easily understood and objectively determinable, the vagueness objection that persuaded the Buckley Court to limit FECA’s reach to express advocacy is inapposite here. Pp. 82–88.

(b) With regard to plaintiffs’ other concerns about the use of the phrase “electioneering communication,” the District Court correctly rejected their submission that new FECA §304 unnecessarily requires disclosure of the names of persons who contributed $1,000 or more to the individual or group paying for the communication, but erred in finding §304(f)(5) invalid because it mandates disclosure of executory contracts for communications that have not yet aired. Because the important state interests identified in Buckley —providing the electorate with information, deterring actual corruption and avoiding its appearance, and gathering data necessary to enforce more substantive electioneering restrictions—apply in full to BCRA, Buckley amply supports application of FECA §304’s disclosure requirements to the entire range of “electioneering communications.” Buckley also forecloses a facial attack on the new §304 provision that requires disclosure of the names of persons who contribute $1,000 or more to segregated funds or spend more than $10,000 in a calendar year on electioneering communications. Under Buckley ’s standard of proof, the evidence here did not establish the requisite reasonable probability of harm to any plaintiff group or its members resulting from compelled disclosure. However, the rejection of this facial challenge does not foreclose possible future challenges to particular applications of that disclosure requirement.

This Court is also unpersuaded by plaintiffs’ challenge to new FECA §304(f)(5)’s requirement regarding the disclosure of executory contracts. The new provision mandates disclosure only when a person makes disbursements totaling more than $10,000 in any calendar year to pay for electioneering communications. Given the relatively short time frames in which such communications are made, the interest in assuring that disclosures are made in time to provide relevant information to voters is significant. Yet fixing the deadline for filing disclosure statements based on the date when aggregate disbursements exceed $10,000 would open a significant loophole without the advance disclosure requirement, for political supporters could avoid preelection disclosures about ads slated to run during a campaign’s final weeks simply by making a preelection downpayment of less than $10,000, with the balance payable after the election. The record contains little evidence of any harm that might flow from the requirement’s enforcement, and the District Court’s speculation about such harm cannot outweigh the public interest in ensuring full disclosure before an election actually takes place. Pp. 88–95.

The District Court’s judgment is affirmed insofar as it held that plaintiffs advanced no basis for finding unconstitutional BCRA §202, which amends FECA §315(a)(7)(C) to provide that disbursements for electioneering communications that are coordinated with a candidate or party will be treated as contributions to, and expenditures by, that candidate or party, 2 U. S. C. A. §441a(a)(7)(C). That provision clarifies the scope of §315(a)(7)(B), which provides that expenditures made by any person in cooperation, consultation, or concert with, or at the request or suggestion of a candidate or party constitute contributions. BCRA pre-empts a possible claim that the term “expenditure” in §315(a)(7)(B) is limited to spending for express advocacy. Because Buckley’ s narrow interpretation of that term was only a statutory limitation on Congress’ power to regulate federal elections, there is no reason why Congress may not treat coordinated disbursements for electioneering communications in the same way it treats other coordinated expenditures. Pp. 96–97.

The District Court’s judgment is affirmed to the extent that it upheld the constitutionality of new FECA §316(b)(2), and reversed to the extent that it invalidated any part of that section. BCRA §203 extends to all “electioneering communications” FECA §316(b)(2)’s restrictions on the use of corporate and union general treasury funds. 2 U. S. C. A. §441b(b)(2). Because those entities may still organize and administer segregated funds, or PACs, for such communications, the provision is a regulation of, not a ban on, expression. Beaumont, 539 U. S., at _ (slip op., at 15). This Court’s consideration of plaintiffs’ claim that the expanded regulation is both overinclusive and underinclusive is informed by the conclusion that the distinction between express advocacy and so-called issue advocacy is not constitutionally compelled. Thus, the Court examines the degree to which BCRA burdens First Amendment expression and evaluates whether a compelling governmental interest justifies that burden. Plaintiffs have not carried their burden of proving that new FECA §316(b)(2) is overbroad. They argue that the justifications that adequately support regulation of express advocacy do not apply to significant quantities of speech encompassed by the electioneering communications definition. That argument fails to the extent that issue ads broadcast during the 30- and 60-day periods preceding federal primary and general elections are the functional equivalent of express advocacy. The justifications for regulating express advocacy apply equally to those ads if they have an electioneering purpose, which the vast majority do. Also rejected is plaintiffs’ argument that new FECA §316(b)(2)’s segregated-fund requirement is underinclusive because it does not apply to print or Internet advertising. The record here reflects that corporations and unions used soft money to finance a virtual torrent of televised election-related ads during the relevant period. Congress justifiably concluded that remedial legislation was needed to stanch that flow of money. Finally, §304(f)(3)(B)(i), which excludes news items and commentary from the electioneering communications definition, is wholly consistent with First Amendment principles as applied to the media. Pp. 97–103.

The District Court’s judgment is affirmed to the extent that it upheld new FECA §316(c)(6), as limited to nonprofit entities that are not so-called MCFL organizations. BCRA §204, which adds §316(c)(6), 2 U. S. C. A. §441b(c)(2), extends to nonprofit corporations the prohibition on the use of general treasury funds to pay for electioneering communications. This Court upheld a similar restriction in Beaumont , supra, except as it applied to organizations that are formed for the express purpose of promoting political ideas, have no shareholders, are not established by a business corporation or labor union, and do not accept contributions from those entities, MCFL, 479 U. S., at 264. The same constitutional objection to applying the pre-BCRA restrictions to such organizations necessarily applies with equal force to FECA §316(c)(6). That §316(c)(6) does not, on its face, exempt MCFL organizations is not a sufficient reason to invalidate it. This Court presumes that the legislators were fully aware that the provision could not apply to MCFL -type entities, and the Government concedes that it does not. As so construed, the provision is plainly valid. Pp. 103–106.

Because this Court has already found BCRA §201’s executory contract disclosure requirement constitutional, plaintiffs’ challenge to a similar disclosure requirement in BCRA §212, which added FECA §304(g), 2 U. S. C. A. §434, is essentially moot. Pp. 106–107.

The District Court’s judgment is affirmed to the extent that it invalidated BCRA §213, which amends FECA §315(d)(4) to require political parties to choose between coordinated and independent expenditures during the postnomination, preelection period. 2 U. S. C. A. §441a(d)(4). That provision places an unconstitutional burden on the parties’ right to make unlimited independent expenditures. Although the category of burdened speech is limited to independent expenditures for express advocacy—and therefore is relatively small—it plainly is entitled to First Amendment protection. The governmental interest in requiring parties to avoid using magic words is not sufficient to support the burden imposed by §315(d)(4). The fact that the provision is cast as a choice rather than an outright prohibition on independent expenditures does not make it constitutional. Pp. 107–114.

The District Court’s judgment is affirmed to the extent that it rejected plaintiffs’ challenges to BCRA §214, which adds FECA §315(a)(7)(B)(ii), 2 U. S. C. A. §441a(a)(7)(b)(ii). FECA §315(a)(7)(B)(i) long has provided that expenditures that are controlled by or coordinated with a candidate will be treated as contributions to the candidate. BCRA §214(a) extends that rule to expenditures coordinated with political parties; and §§214 (b) and (c) direct the FEC to promulgate new regulations that do not “require agreement or formal collaboration to establish coordination,” 2 U. S. C. A. §441a(a) note. FECA §315(a)(7)(B)(ii) is not overbroad simply because it permits a finding of coordination in the absence of a pre-existing agreement. Congress has always treated expenditures made after a wink or nod as coordinated. Nor does the absence of an agreement requirement render §315(a)(7)(B)(ii) unconstitutionally vague. An agreement has never been required under §315(a)(7)(B)(i), which uses precisely the same language as the new provision to address coordination with candidates, and which has survived without constitutional challenge for almost three decades. Plaintiffs have provided no evidence that that the definition has chilled political speech, and have made no attempt to explain how an agreement requirement would prevent the FEC from engaging in what they fear will be intrusive and politically motivated investigations. Finally, in this facial challenge to BCRA, plaintiffs’ challenge to §§214(b) and (c) is not ripe to the extent that they allege constitutional infirmities in the FEC’s new regulations rather than the statute. Pp. 114–119.

The Chief Justice delivered the opinion of the Court with respect to miscellaneous BCRA Title III and IV provisions, concluding that the District Court’s judgment with respect to these provisions must be affirmed. Pp. 2–11. ....

http://www.law.cornell.edu/supremecourt/text/02-1674/#writing-ZS

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U.S. Supreme Court

AUSTIN v. MICHIGAN CHAMBER OF COMMERCE, 494 U.S. 652 (1990)

494 U.S. 652

AUSTIN, MICHIGAN SECRETARY OF STATE, ET AL. v. MICHIGAN STATE CHAMBER OF

COMMERCE

APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

No. 88-1569.

Argued October 31, 1989

Decided March 27, 1990

Appellee Michigan State Chamber of Commerce (Chamber) is a nonprofit corporation, whose bylaws set forth both political and nonpolitical purposes. Its general treasury is funded through annual dues required of all members, three-quarters of whom are for-profit corporations. Section 54(1) of the Michigan Campaign Finance Act prohibits corporations, excluding media corporations, from using general treasury funds for, inter alia, independent expenditures in connection with state candidate elections. However, they may make such expenditures from segregated funds used solely for political purposes. Because the Chamber wished to use general treasury funds to place a local newspaper advertisement in support of a specific candidate for state office, it brought suit in the Federal District Court for injunctive relief against 54(1)'s enforcement, arguing that the expenditure restriction is unconstitutional under the First and Fourteenth Amendments. The court upheld the section, but the Court of Appeals reversed, reasoning that, as applied to the Chamber, 54(1) violated the First Amendment.

Held:

    :{1. Section 54(1) does not violate the First Amendment. Pp. 657-666.:(style="font-family:Merriweather")::(style="font-family:Merriweather"):}:

    :{(a) Although 54(1)'s requirements burden the Chamber's exercise of political expression, see FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 252 (MCFL), they are justified by a compelling state interest: preventing corruption or the appearance of corruption in the political arena by reducing the threat that huge corporate treasuries, which are amassed with the aid of favorable state laws and have little or no correlation to the public's support for the corporation's political ideas, will be used to influence unfairly election outcomes. Pp. 657-660.:(style="font-family:Merriweather")::(style="font-family:Merriweather"):}:

    :{(b) Section 54(1) is sufficiently narrowly tailored to achieve its goal, because it is precisely targeted to eliminate the distortion caused by corporate spending while also allowing corporations to express their political views by making expenditures through separate segregated funds. Because persons who contribute to segregated funds understand that their money will be used solely for political purposes, the speech generated accurately reflects contributors' support for the corporation's political views. The fact that 54(1) covers closely held corporations that [494 U.S. 652, 653]   do not possess vast reservoirs of capital does not make it substantially overinclusive, because all corporations receive the special benefits conferred by the corporate form and thus present the potential for distorting the political process. Cf. FEC v. National Right to Work Committee, 459 U.S. 197, 209 -210. Pp. 660-661.:(style="font-family:Merriweather")::(style="font-family:Merriweather"):}:

    :{(c) There is no merit to the Chamber's argument that even if 54(1) is constitutional with respect to for-profit corporations, it cannot be applied to a nonprofit ideological corporation such as itself. The Chamber does not exhibit the crucial features identified in MCFL, supra, that would require the State to exempt it from independent spending burdens as a nonprofit corporation more akin to a voluntary political association than a business firm. MCFL's narrow focus on the promotion of political ideas ensured that its resources reflected political support, while the Chamber's more varied bylaws do not. Additionally, unlike MCFL members, the Chamber's members are similar to shareholders - who have an economic disincentive for disassociating with a corporation even if they disagree with its political activity - in that they may be reluctant to withdraw from the Chamber because they wish to benefit from its nonpolitical programs and to establish contacts with other members of the business community. Also in contrast to MCFL, which took no contributions from business corporations, more than three-quarters of the Chamber's members are business corporations, whose political contributions and expenditures can constitutionally be regulated by the State, and who thus could circumvent 54(1)'s restriction by funneling money through the Chamber's general treasury. Pp. 661-665.:(style="font-family:Merriweather")::(style="font-family:Merriweather"):}:

    :{(d) Section 54(1) is not rendered underinclusive by its failure to regulate the independent expenditures of unincorporated labor unions that also have the capacity to accumulate wealth, because the exclusion does not undermine the State's compelling interest in regulating corporations whose unique form enhances such capacity. Moreover, because members who disagree with a union's political activities can decline to contribute to them without giving up other membership benefits, a union's political funds more accurately reflect members' support for the organization's political views than does a corporation's general treasury. Pp. 665-666.:(style="font-family:Merriweather")::(style="font-family:Merriweather"):}:

    :{2. Section 54(1) does not violate the Equal Protection Clause of the Fourteenth Amendment. Even under strict scrutiny, its classifications pass muster. The State's decision to regulate corporations and not unincorporated associations is precisely tailored to serve its compelling interest. Similarly, the exemption of media corporations does not render the section unconstitutional. Restrictions on the expenditures of corporations whose resources are devoted to the collection and dissemination of information to the public might discourage news [494 U.S. 652, 654]   broadcasters or publishers from serving their crucial societal role of reporting on and publishing editorials about newsworthy events; thus, their exemption from the section's restriction is justified. Pp. 666-668.:(style="font-family:Merriweather")::(style="font-family:Merriweather"):}:

856 F.2d 783, reversed.

MARSHALL, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and BRENNAN, WHITE, BLACKMUN, and STEVENS, JJ., joined. BRENNAN, J., post, p. 669, and STEVENS, J., post, p. 678, filed concurring opinions. SCALIA, J., filed a dissenting opinion, post, p. 679. KENNEDY, J., filed a dissenting opinion, in which O'CONNOR and SCALIA, JJ., joined, post, p. 695.

Louis J. Caruso, Solicitor General of Michigan, argued the cause for appellants. With him on the briefs were Frank J. Kelley, Attorney General, pro se, Thomas L. Casey, Assistant Solicitor General, and Gary P. Gordon and Richard P. Gartner, Assistant Attorneys General.

Richard D. McLellan argued the cause for appellee. With him on the brief were Joel M. Boyden, William J. Perrone, and Cindy M. Wilder. *

[ Footnote * ] Briefs of amici curiae urging reversal were filed for the Federal Election Commission by Lawrence M. Noble and Richard B. Bader; and for Common Cause by Roger M. Witten, Carol F. Lee, and Archibald Cox.

Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union by Arthur B. Spitzer, John A. Powell, and Joel M. Gora; for the American Medical Association et al. by Michael A. Nemeroff, Carter G. Phillips, and Mark D. Hopson; for the Center for Public Interest Law by Robert C. Fellmeth; and for the Washington Legal Foundation et al. by Daniel J. Popeo and Paul D. Kamenar.

Thomas J. Hart filed a brief of amici curiae for the National Organization for Women et al.

JUSTICE MARSHALL delivered the opinion of the Court.

In this appeal, we must determine whether 54(1) of the Michigan Campaign Finance Act, 1976 Mich. Pub. Acts 388, violates either the First or the Fourteenth Amendment to the Constitution. Section 54(1) prohibits corporations from using corporate treasury funds for independent expenditures in support of, or in opposition to, any candidate in elections for state office. Mich. Comp. Laws 169.254(1) (1979). Corporations [494 U.S. 652, 655] are allowed, however, to make such expenditures from segregated funds used solely for political purposes. 169.255(1). In response to a challenge brought by the Michigan State Chamber of Commerce (Chamber), the Sixth Circuit held that 54(1) could not be applied to the Chamber, a Michigan nonprofit corporation, without violating the First Amendment. 856 F.2d 783 (1988). Although we agree that expressive rights are implicated in this case, we hold that application of 54(1) to the Chamber is constitutional because the provision is narrowly tailored to serve a compelling state interest. Accordingly, we reverse the judgment of the Court of Appeals.

Section 54(1) of the Michigan Campaign Finance Act prohibits corporations from making contributions and independent expenditures in connection with state candidate elections. 1 The issue before us is only the constitutionality of the State's ban on independent expenditures. The Act defines "expenditure" as "a payment, donation, loan, pledge, or promise of payment of money or anything of ascertainable monetary value for goods, materials, services, or facilities in assistance of, or in opposition to, the nomination or election of a candidate." 169.206(1). An expenditure is considered independent if it is "not made at the direction of, or under the control of, another person and if the expenditure is not a contribution to a committee." 169.209(1); see 169.203(4) (defining "committee" as a group that "receives contributions or makes expenditures for the purpose of influencing or attempting to influence the action of the voters for or against the nomination or election of a candidate"). The Act exempts from this general prohibition against corporate political spending any expenditure made from a segregated fund. [494 U.S. 652, 656] 169.255(1). A corporation may solicit contributions to its political fund only from an enumerated list of persons associated with the corporation. See 169.255(2), (3).

The Chamber, a nonprofit Michigan corporation, challenges the constitutionality of this statutory scheme. The Chamber comprises more than 8,000 members, three-quarters of whom are for-profit corporations. The Chamber's general treasury is funded through annual dues required of all members. Its purposes, as set out in the bylaws, are to promote economic conditions favorable to private enterprise; to analyze, compile, and disseminate information about laws of interest to the business community and to publicize to the government the views of the business community on such matters; to train and educate its members; to foster ethical business practices; to collect data on, and investigate matters of, social, civic, and economic importance to the State; to receive contributions and to make expenditures for political purposes and to perform any other lawful political activity; and to coordinate activities with other similar organizations.

In June 1985 Michigan scheduled a special election to fill a vacancy in the Michigan House of Representatives. Although the Chamber had established and funded a separate political fund, it sought to use its general treasury funds to place in a local newspaper an advertisement supporting a specific candidate. As the Act made such an expenditure punishable as a felony, see 169.254(5), the Chamber brought suit in District Court for injunctive relief against enforcement of the Act, arguing that the restriction on expenditures is unconstitutional under both the First and the Fourteenth Amendments.

The District Court upheld the statute. 643 F. Supp. 397 (WD Mich. 1986). The Sixth Circuit reversed, reasoning that the expenditure restriction, as applied to the Chamber, violated the First Amendment. We noted probable jurisdiction, 490 U.S. 1045 (1989), and now reverse. [494 U.S. 652, 657]

To determine whether Michigan's restriction on corporate political expenditures may constitutionally be applied to the Chamber, we must ascertain whether it burdens the exercise of political speech and, if it does, whether it is narrowly tailored to serve a compelling state interest. Buckley v. Valeo, 424 U.S. 1, 44 -45 (1976) (per curiam). Certainly, the use of funds to support a political candidate is "speech"; independent campaign expenditures constitute "political expression `at the core of our electoral process and of the First Amendment freedoms.'" Id., at 39 (quoting Williams v. Rhodes, 393 U.S. 23, 32 (1968)). The mere fact that the Chamber is a corporation does not remove its speech from the ambit of the First Amendment. See, e. g., First National Bank of Boston v. Bellotti, 435 U.S. 765, 777 (1978).

This Court concluded in FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238 (1986) (MCFL), that a federal statute requiring corporations to make independent political expenditures only through special segregated funds, 2 U.S.C. 441b, burdens corporate freedom of expression. MCFL, 479 U.S., at 252 (plurality opinion); id., at 266 (O'CONNOR, J., concurring in part and concurring in judgment). The Court reasoned that the small nonprofit corporation in that case would face certain organizational and financial hurdles in establishing and administering a segregated political fund. For example, the statute required the corporation to appoint a treasurer for its segregated fund, keep records of all contributions, file a statement of organization containing information about the fund, and update that statement periodically. Id., at 253 (plurality opinion). In addition, the corporation was permitted to solicit contributions to its segregated fund only from "members," which did not include persons who merely contributed to or indicated support for the organization. Id., at 254 (plurality opinion). [494 U.S. 652, 658] These hurdles "impose[d] administrative costs that many small entities [might] be unable to bear" and "create[d] a disincentive for such organizations to engage in political speech." Ibid; see also id., at 265-266 (O'CONNOR, J.).

Despite the Chamber's success in administering its separate political fund, see, e. g., Tr. 443 (Chamber expected to have over $140,000 in its segregated fund available for use in the 1986 elections), Michigan's segregated fund requirement still burdens the Chamber's exercise of expression because "the corporation is not free to use its general funds for campaign advocacy purposes." MCFL, supra, at 252 (plurality opinion). The Act imposes requirements similar to those in the federal statute involved in MCFL: a segregated fund must have a treasurer, 169.221; and its administrators must keep detailed accounts of contributions, 169.224, and file with state officials a statement of organization, ibid. In addition, a nonprofit corporation like the Chamber may solicit contributions to its political fund only from members, stockholders of members, officers or directors of members, and the spouses of any of these persons. 169.255. Although these requirements do not stifle corporate speech entirely, they do burden expressive activity. See MCFL, 479 U.S., at 252 (plurality opinion); id., at 266 (O'CONNOR, J.). Thus, they must be justified by a compelling state interest.

...

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=494&invol=652

Lessig Analysis: http://bostonreview.net/BR35.5/lessig.php

...

On January 21, 2010, a year and a day after Barack “change the way Washington works” Obama was sworn into office, the Supreme Court rendered the environment for this institutional corruption much worse. By a five-to-four vote, the Court in Citizens United v. Federal Election Commission (FEC) secured to corporations a right that individuals have had since the last equally fundamental Supreme Court decision on campaign finance (Buckley v. Valeo, 1976): the right to spend an unlimited amount on independent campaign expenditures. “Independent expenditures”—not contributions to candidates. And “independent expenditures”—not coordinated with the campaign. No doubt, as corporations exercise this new right, candidates will become skilled in the dance necessary to get enormous corporate wealth spent for their political benefit.

At issue in Citizens United was a limitation in the Bipartisan Campaign Reform Act of 2002 (BCRA, commonly known as McCain-Feingold). BCRA forbade any company from using corporate funds to influence an election within 60 days of that election, even if the funds were being used simply to discuss an issue, although in a way that plainly demonstrated support for or opposition to a candidate. Citizens United, a nonprofit corporation, wanted to use funds from its own treasury to promote a film critical of Hillary Clinton. BCRA blocked that use because the film in effect advocated voting against Hillary Clinton. Citizens United challenged the law as an unacceptable abridgment of its freedom of speech.

Citizens United might have spoken through other channels—for example, by setting up a political action committee (PAC) with its own treasury to which individuals could contribute. And the individuals who had created Citizens United were still free (because of Buckley) to spend independently as much as they wanted to advance their interests. Nonetheless, the Court held that Congress had no power to block the corporation itself from spending funds on political speech....

[lessig agrees w/ some apects/worries but ] Kennedy slips in "and contributors" = citizens (lots of $ comes from out of state)

...

This leads to the second critical passage from Citizens United, casually dismissive of the problem of institutional corruption:

The appearance of influence or access . . . ?will not cause the electorate to lose faith in our democracy.

Among constitutional lawyers, this sort of claim is called “Lochnerism,” and the moniker is not high praise. It derives from an infamous 1905 case, Lochner v. New York, in which the Supreme Court struck down New York’s Bakeshop Act of 1895. That progressive statute included a maximum-hours requirement for workers in the baking industry and established minimum conditions for plumbing, flooring, product storage, and sanitation. The Republican-dominated state legislature passed the regulation twice, each time unanimously. In defending this statute before the Supreme Court, lawyers for the State of New York said the regulation was a health measure, intended to improve the well-being of overworked bakers.

The Supreme Court, however, rejected New York’s argument. On the Court’s view, the regulation of hours worked had no bearing on a worker’s health. The statute thus must have had a different motivation behind it. And as the Court sussed that motivation out, it claimed that New York’s true aim was to benefit labor at the expense of capital. The law was simple redistribution, and the Fourteenth Amendment, the Court held, banned such a taking from A to give to B.

But the question of whether the regulation does or does not affect the health of bakers is a factual one, not a matter of constitutional interpretation. So one might rightly ask: on what factual basis did the Court rest its judgment?

The answer is none. The Court had no evidence for its claim, while the State of New York had plenty. An 1894 report by the New York State Labor Commissioner found that baking was an especially dangerous occupation, in part because of the extended hours of the baker. After a 30-year war between courts and legislators, the Supreme Court finally decided firmly that it was no longer in the business of second-guessing state or federal legislatures about the social conditions they purported to regulate. As the Court said in West Coast Hotel v. Parrish (1937): “Even if the wisdom of the policy be regarded as debatable and its effects uncertain, still the Legislature is entitled to its judgment.”

...

there are plenty of ways to coordinate without coordination. To paraphrase Boston political boss Martin Lomasney, Washington is the kind of city where one never writes if one can call, never calls if one can speak, never speaks if one can nod, and never nods if one can wink. Little doubt that in such a rich environment of reciprocity, open deals are rarely essential.

moyers: http://www.pbs.org/moyers/journal/02192010/citizensunited.html

Friday, Jan 22, 2010 10:23 AM PST

What the Supreme Court got right

It's best for the government to stay out of the business of restricting political advocacy

By Glenn Greenwald http://www.salon.com/2010/01/22/citizens_united/

...I’m also quite skeptical of the apocalyptic claims about how this decision will radically transform and subvert our democracy by empowering corporate control over the political process. My skepticism is due to one principal fact: I really don’t see how things can get much worse in that regard. The reality is that our political institutions are already completely beholden to and controlled by large corporate interests (Dick Durbin: ”banks own” the Congress). Corporations find endless ways to circumvent current restrictions — their armies of PACs, lobbyists, media control, and revolving-door rewards flood Washington and currently ensure their stranglehold — and while this decision will make things marginally worse, I can’t imagine how it could worsen fundamentally. ...

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montana; http://www.opensecrets.org/news/2012/06/scotus-rejects-montana-citizens-uni.html

http://www.slate.com/articles/news_and_politics/jurisprudence/2010/01/money_isnt_speech_and_corporations_arent_people.html

By David Kairys | Posted Friday, Jan. 22, 2010, at 6:03 PM ET

| Posted Friday, Jan. 22, 2010, at 6:03 PM ET

Slate.com

Money Isn't Speech and Corporations Aren't People

The misguided theories behind the Supreme Court's ruling on campaign finance reform.

Go back almost a century, to the time when the modern corporation was created, and you'll find laws that prohibit or limit the use of corporate money in elections. And yet this week, a 5-4 Supreme Court struck down the limits that Congress passed in 2002 in this tradition in the case Citizens United v. FEC.

The majority's ruling unleashes a new wave of campaign cash and adds to the already considerable power of corporations. The court's main rationale is that limits on using corporate treasuries for campaigns are a "classic example of censorship," as Justice Anthony Kennedy wrote for the majority. To get there, Kennedy depends on two legal theories that blossomed as constitutional principles in the mid-1970s: money is speech and corporations are people. Both theories are strange, if not simply wrongheaded—why, according to the Constitution or common sense, would money be speech or corporations be people? The court has also employed theories not uniformly but, rather, as constitutional cover for dominance of the electoral system by corporations and by the wealthy.

The first theory appeared in a 1976 decision, Buckley v. Valeo, which invalidated some campaign-finance reforms that came out of Watergate. The Court concluded that most limits on campaign expenditures, and some limits on donations, are unconstitutional because money is itself speech and the "quantity of expression"—the amounts of money—can't be limited.

But in subsequent cases, the conservative justices who had emphatically embraced the money-is-speech principle didn't apply it to money solicited by speakers of ordinary means. For example, the court limited the First Amendment rights of Hare Krishna leafleters soliciting donations in airports to support their own leafleting. The leafleting drew no money-is-speech analysis. To the contrary, the conservative justices, led by Chief Justice Rehnquist, found that by asking for money for leafleting—their form of speech—the Hare Krishnas were being "disruptive" and posing an "inconvenience" to others. In other words, in the court's view, some people's money is speech; others' money is annoying. And the conservative justices have raised no objection to other limits on the quantity of speech, such as limits on the number of picketers.

The money-is-speech theory turns out to be a rhetorical device used exclusively to provide First Amendment protection for all money that wealthy people and businesses want to give to, or to spend, on campaigns. It also doesn't make sense under long established free-speech law. Spending or donating money to support or facilitate speech is expressive and deserves some protection. But money simply doesn't make it into the category of things that are and embody speech, such as books, films, or blogs. Traditional speech-law analysis would separate the speech from the conduct (or "nonspeech") elements of campaign spending and donation and allow considerable leeway to regulate the latter. Even as to "pure" speech, "compelling" government interests are overriding. And spending and donating money seem, among the traditional speech-law categories, a "manner" of speaking that the court has said usually can be "reasonably regulated."

The other basic theory supporting the ruling in Citizens United—the court's claim that, for some purposes, corporations are constitutionally, if not actually, people—comes out of the long history of the development of corporations. But the extension of corporate personhood to campaign speech is a controversial innovation of the conservative justices over the last few decades.

Corporations needed some rights usually reserved for people to function as legal entities, so that they could, for instance, make enforceable contracts and sue or be sued. But despite the common cultural personification of corporations—we can easily say "GM was embarrassed today"—they obviously don't and shouldn't have all the rights of people. For example, they don't have the right to vote.

In Citizens United, Justice Kennedy discusses business corporations as if they were clubs or political associations with political viewpoints and elected leaders. But corporate managers don't function as representatives or employees of shareholders, who have no say, no shared political views, and no expectation that their investments will be used for political ends. In the wake of the court's ruling this week, will some corporations pick a party or politics while others channel unheard of amounts of money to both major parties? Will investors be influenced by a corporation's political portfolio?

The Citizens United decision will make it harder to achieve reforms opposed by major corporations and change business as well as politics. Increasing the constitutional rights of corporations beyond their business purposes is really about increasing the rights and power of corporate managers. Government has enabled corporate managers to control huge accumulations of wealth without any personal risk—an arrangement that contributes to wild, bubble-producing economic swings and collapses. Citizens United invites that arrangement directly into politics and elections.

Both of these theories—that money is speech and that corporations are people—have an easier time than they should in courts and with the public, too, because they are posed as counters to censorship. Many of us, including me, haven't seen a free-speech argument we don't like, at least initially.

In a largely unnoticed rewriting of speech law, the conservative justices have applied their theories and doctrines inconsistently and selectively, as they have money-is-speech. Some of the conservatives' recent innovations would seem to validate campaign finance laws. The "secondary effects" doctrine, for example, allows government to restrict speech if government can suggest a general, non-speech-related purpose, even if the real purpose is speech-related. The court ignored this doctrine in Citizens' United and other campaign finance cases—even though campaign finance reform is aimed not at speech itself, but at large amounts of money that skew, corrupt, and undermine elections.

The court's invalidation of campaign finance reforms over the last few decades isn't about censorship or suppressed speakers or viewpoints. At its core, this line of cases is about dominance of the political and electoral system by wealthy people and corporations and about legitimizing a political and electoral system that is unrepresentative, money-driven, corrupt, outmoded, and dysfunctional. Wealthy people and corporate managers shouldn't dominate politics or have more and better speech rights than the rest of us. That seems like an obvious truth. And yet the Supreme Court's recent decisions move us away from it.

Court Declines to Revisit Its Citizens United Decision (montanna)

...“The question presented in this case is whether the holding of Citizens United applies to the Montana state law,” the opinion said. “There can be no serious doubt that it does.” Montana’s arguments, the opinion continued, “either were already rejected in Citizens United, or fail to meaningfully distinguish that case.”

The four members of the court’s liberal wing dissented in an opinion by Justice Stephen G. Breyer, who said that Citizens United itself had been a mistake.

“Even if I were to accept Citizens United,” Justice Breyer continued, “this court’s legal conclusion should not bar the Montana Supreme Court’s finding, made on the record before it, that independent expenditures by corporations did in fact lead to corruption or the appearance of corruption in Montana. Given the history and political landscape in Montana, that court concluded that the state had a compelling interest in limiting independent expenditures by corporations.”

Justice Breyer added, “Montana’s experience, like considerable experience elsewhere since the court’s decision in Citizens United, casts grave doubt on the court’s supposition that independent expenditures do not corrupt or appear to do so.”

Critics of the Supreme Court’s campaign finance rulings attacked Monday’s decision, saying Citizens United had led to unprecedented levels of outside money pouring into the presidential campaign and races for the House and Senate — the vast majority of it raised not from corporations but from wealthy individuals and spent by “super PACs” and other independent groups.

Democrats in Congress have proposed measures to rein in campaign spending, strengthen disclosure requirements and even amend the Constitution to reverse Citizens United.

In Montana, the State Supreme Court had ruled that the state’s distinctive history and characteristics warranted a departure from the principles announced in Citizens United.

Chief Justice Mike McGrath of the Montana Supreme Court, writing for the majority in its 5-to-2 ruling, stressed that the state’s experience of having its political system corrupted by corporate interests early in the 20th century justified the ruling.

“At that time,” Chief Justice McGrath wrote, “the state of Montana and its government were operating under a mere shell of legal authority, and the real social and political power was wielded by powerful corporate managers to further their own business interests. The voters had more than enough of the corrupt practices and heavy-handed influence asserted by the special interests controlling Montana’s political institutions.”

This year, by coincidence, in a hotly contested election for a United States Senate seat in Montana, Senator Jon Tester, a Democrat, has been the target of $2.6 million in spending by outside groups. On Monday, he said that the Supreme Court decision had “rolled back Montana 100 years, back to the time literally when millionaires and billionaires bought elections, and they did it under the guise of free speech, which is crazy.”

In February, two of the dissenters in Citizens United — Justice Ruth Bader Ginsburg, joined by Justice Breyer — issued a statement explaining that “lower courts are bound to follow this court’s decisions until they are withdrawn or modified.”

They added, though, that the United States Supreme Court should use the Montana case to consider the aftermath of Citizens United. The case, they wrote, was “an opportunity to consider whether, in light of the huge sums deployed to buy candidates’ allegiance, Citizens United should continue to hold sway.” ....