The Citizens United Case Began With a Movie, and Banning Books Was on the Table

Ask a hundred people what Citizens United was about and ninety of them will tell you it was about billionaires buying elections. Ask them what the case was literally about and you will get a lot of blank stares. It was about a movie. A ninety-minute political documentary about a presidential candidate, made by a small nonprofit, that the federal government said it could keep off the air.

Let that sink in, folks. In the year 2008 the United States government took the position, in a federal courtroom, that a political documentary was something it could regulate and, under the logic of the law, perhaps ban. And when the case got to the Supreme Court, a lawyer for the government was asked the question that every free person ought to ask: what about a book?

I am going to do this one in the proper order. First I will give you the best case against the decision, because it is a serious case made by serious people and it deserves to be stated fairly. Then I will tell you what the case was really about. Then I will answer the opposing argument point by point. At the end I will concede the places where critics have a point, because there are some, and a conservative who can't admit that has no business making the argument.

The case against, at its strongest

Here is how a thoughtful critic of Citizens United would put it, in terms he would accept.

One, democracy depends on public confidence that elected officials answer to voters and not to money. Two, corporations are legal entities created by the state, with advantages such as limited liability, and they exist to make money, not to take part in civic life. Three, giving them a free hand to spend on elections invites large sums that can drown out ordinary voices. Four, even if independent spending isn't a bribe, it can create gratitude, access and the appearance of corruption, which erode trust. Five, Congress had a century of experience with this problem, and the Court overturned it on a hunch. Justice John Paul Stevens made versions of these points in a long dissent, joined by Justices Ginsburg, Breyer and Sotomayor.

That is a strong argument. I think it is wrong, and I will explain why. But I don't think the people who make it are fools or enemies of free speech. They are worried about something real.

How a movie got to the Supreme Court

Citizens United is a nonprofit corporation with a conservative point of view. In 2008, during the Democratic primary season, it made a ninety-minute film called Hillary: The Movie, a harshly critical look at Senator Hillary Clinton, who was then running for president. The group wanted to offer the film on cable video-on-demand and to advertise it on television in the weeks before the primaries.

Standing in its way was a law. The Bipartisan Campaign Reform Act of 2002, known as McCain-Feingold after its sponsors, Senators John McCain, a Republican, and Russ Feingold, a Democrat, barred corporations and unions from using their general treasury funds to pay for "electioneering communications." An electioneering communication was a broadcast, cable or satellite message that referred to a federal candidate and ran within thirty days of a primary or sixty days of a general election. The Federal Election Commission, which enforces federal campaign finance law, took the position that the film and its advertisements fell under that rule. A lower court agreed, and the group appealed to the Supreme Court.

The Supreme Court heard argument in March 2009. Then something unusual happened. Instead of deciding the narrow question, the Court asked the parties to come back in September and address a larger one: should the Court overrule two earlier cases, Austin v. Michigan Chamber of Commerce (1990) and part of McConnell v. FEC (2003)? The case was reargued on September 9, 2009, and decided on January 21, 2010.

The question about the book

During the first argument, Justice Alito asked the government's lawyer whether the law's logic would reach a book. If a corporation published a book that told readers to vote for or against a candidate, could the government ban it? The answer the lawyer gave was that, on the government's reading of the statute, it could, though he suggested the government might not do so in practice. At the rehearing, the government's position was more cautious. It said that questions about books could be raised in a challenge to a particular application of the law, and that pamphlets fell squarely inside the statute.

I am not going to quote the transcripts, because they are public and you should read them. They are on the Supreme Court's website. What matters is this: the government defended a law that, by its own lawyers' account, could reach a published book. That was the practical stakes of the case. The question was not whether rich companies could buy television ads. It was whether Washington could decide which political books and films could be published, and by whom.

What the law was before

To understand what changed, you need the earlier cases.

In Buckley v. Valeo (1976), the Court held that spending money to express political views is protected speech, and struck down limits on independent expenditures and on a candidate's spending of his own money. But it upheld limits on direct contributions to candidates, because a large gift to a candidate can look like a payment for a favor, and it upheld disclosure requirements.

Congress had barred corporations from contributing directly to federal candidates since the Tillman Act of 1907. That wasn't at issue in Citizens United, and it remains in force.

Then came Austin (1990). The Court upheld a Michigan law that barred corporations from using treasury funds for independent expenditures supporting or opposing candidates, reasoning that large corporate treasuries had a "corrosive and distorting" effect on elections. McConnell (2003) relied on that reasoning to uphold the main provisions of McCain-Feingold. By 2008, then, the law was that corporate speech about elections could be banned. It was the Court's decision in Citizens United that reversed it.

What the Court held

By a five-to-four vote, in an opinion by Justice Anthony Kennedy, the Court held that the government may not suppress political speech on the basis of the speaker's corporate identity. It overruled Austin and the part of McConnell that had upheld the ban on corporate-funded electioneering communications. Kennedy's reasoning has three parts. First, the First Amendment does not distinguish between speakers by their identity, and a law that bans speech by a class of speakers is a law that bans speech. Second, the government's anti-corruption interest, which the Court has long recognized, covers quid pro quo corruption and its appearance, and independent expenditures, which are by definition not coordinated with a candidate, do not give rise to that kind of corruption. Third, the idea that government may restrict speech to equalize the voices of different speakers was rejected, as it had been in Buckley.

The case did not say that corporations are people in the sense of having every right a human being has. It said that political speech doesn't lose protection because a group of people organized as a corporation is the one speaking. The same ruling covers labor unions, which are not corporations in the ordinary sense but were covered by the same law, and it covers nonprofits such as the Sierra Club and the NRA.

And the Court did something that critics rarely mention. By an eight-to-one vote, it upheld the disclaimer and disclosure requirements in McCain-Feingold, which require ads to say who paid for them and require disclosure of spending. Only Justice Thomas disagreed on that point.

The answer, point by point

1. A speaker's identity is not a reason to silence the speech. The First Amendment protects "the freedom of speech," not the freedom of speech by approved speakers. The Framers' generation lived under licensing and printing laws that decided who was allowed to publish. The entire point of the amendment is that the government doesn't get to pick. A corporation is, in the ordinary sense, a group of people acting together, and the people in it do not give up their rights by joining. If you accept that a union, a church, a newspaper company and a local business association can speak, you've accepted most of the argument.

2. The line the government drew was impossible to hold. The law exempted media corporations. So the New York Times could endorse a candidate and a documentary maker's corporation could not. But the Times is a corporation too, and so is the company that owns a cable news channel. If the rule is "corporations are dangerous," the media exemption makes no sense. If the rule is "media corporations are special," you must answer who counts as the media, and the government is then licensing the press, which is the problem the First Amendment exists to prevent. In a world of blogs, podcasts and short videos, that line is not just hard to draw. It is dangerous to try.

3. The corruption interest is real, but it is about corruption. The Court has said since Buckley that the government may limit contributions because a big check to a candidate can look like a purchase. That is why contribution limits survived. But independent spending, where a group buys its own ad with no coordination with the campaign, is a different thing. A candidate cannot owe gratitude for an ad he did not ask for and did not control, and the law already forbids the coordination that would turn it into a favor. The critic's broader claim, that money buys influence in a general way, is a claim about politics, not about bribery, and the remedy for too much influence is more speech, not less.

4. The shareholder objection cuts the other way. Critics say shareholders who disagree with a company's politics are forced to fund it. But the law that Stevens defended applied to unions, too, where members pay dues, and it didn't ask them either. If this is a real problem, it is solved by rules of governance, such as shareholder voting and disclosure, not by a ban on speech.

5. The government's position was dangerous on its own terms. A statute that could be read to reach a book is a statute the government should not have. The remedy for a law that goes too far is to strike it, not to hope that the officials who enforce it are always reasonable. This is a conservative principle: don't give government a power you wouldn't want your opponents to hold.

Contribution limits did not disappear

Many people think Citizens United abolished campaign finance limits. It didn't. Corporations still cannot give directly to candidates. Individuals remain subject to limits on contributions to candidates and parties, which are adjusted periodically, so check the Federal Election Commission's website for the numbers that apply. Coordination between a candidate and an outside group remains regulated.

What changed was the structure of outside spending. In SpeechNow.org v. FEC (2010), the full D.C. Circuit held that, given Citizens United, the government could not limit contributions to a group that makes only independent expenditures, since such a group cannot corrupt a candidate. That ruling, and the FEC's follow-up guidance, produced what we call super PACs: committees that can raise unlimited sums from individuals and organizations and spend them on independent political speech, but cannot give to candidates or coordinate with them. They register with the FEC and file regular reports naming donors. You can read more about how to follow the money in how to read a campaign finance report the way an auditor would and How campaign finance law works, and why you should check the FEC for the numbers.

Where the critics have a point

Honesty requires me to say three things.

First, "dark money" is a real complaint. Some groups organized as 501(c)(4) social welfare organizations spend on politics without disclosing their donors. The conservative response is that donor privacy has constitutional roots: in NAACP v. Alabama (1958), the Court protected the group's membership list from state demands, because exposure can chill association. That is a serious principle, and also one that applies whether the donor is liberal or conservative. But a fair-minded reader can say that voters have a legitimate interest in knowing who is paying for a message, and the case for disclosure of large political donors is a respectable one.

Second, the issue is not purely partisan. McCain, the man who put his name on the law, was a Republican. Conservative scholars disagree about where the lines are. Disagreement about the details of campaign finance is not a sign that one side hates democracy.

Third, the decision did not end the argument. It changed the terms of it. A conservative who wants to defend Citizens United should be able to say what limits he would accept, and I think the answer is: disclosure of who pays, enforcement of the bans on bribery and coordination, and no restrictions on who may speak.

Related reading

If you want the broader free speech picture, start with Eight Supreme Court Cases That Explain What the First Amendment Protects and Seven Things Americans Get Wrong About the First Amendment. For the principle that government power should be checked, even when you like the people holding it, see Madison Built a Government Where Ambition Fights Ambition, and It Works.

The bottom line

• Citizens United was about whether the government could keep a political movie off the air, and the government's own lawyers acknowledged the law could reach a book. That is the part the headlines leave out.
• The decision protects speech by corporations, unions and nonprofits alike. It did not repeal contribution limits, the ban on corporate gifts to candidates, or disclosure rules.
• The case for the other side is about corruption and public trust. Answer it with the quid pro quo line, with disclosure and with the free speech principle, not with a shrug.
• Check the numbers yourself at the FEC's website before you repeat any claim about who spent what.
• If you're ever asked to defend the ruling, start with the book. Ask the other person whether the government should have the power to ban it.