"The censorship we now confront is vast in its reach," Justice Anthony Kennedy said, writing for the majority, in which he was joined by his four more conservative colleagues: Chief Justice John Roberts, and Justices Samuel Alito, Antonin Scalia and Clarence Thomas. Strongly disagreeing, Justice John Paul Stevens wrote in his dissent, "The court's ruling threatens to undermine the integrity of elected institutions around the nation." Stevens was joined in dissent by Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor.
In September 2009, the court took a rare step of asking to hear the arguments for a second time in the case, Citizens United vs. Federal Election Commission. It was first argued before the court in March 2009, but later, the justices decided they needed a to rehear the case because they wanted to focus on the broader concept of the constitutional basis for campaign laws and how they regulate corporations' expressions of political speech.
Court-watchers speculated at the time that the court had scheduled the second hearing so that newer Justices Roberts and Alito could consider overturning two earlier cases that had upheld corporate restrictions on campaign finance prior to their arrival on the high court. One was Austin v. Michigan Chamber of Commerce (1990) and the second was McConnell v. Federal Election Commission (2003).
A Clear Case of 'Electioneering'
Citizens United first brought the suit when the FEC denied it the right to show an anti-Hillary Clinton movie, "Hillary: The Movie" on cable and pay-per-view networks, and in theaters. The FEC ruled at the time that federal law prohibited airing of the movie, describing it as an "electioneering communication" of a type which corporations are specifically banned from funding. A federal court panel agreed and ruled that distribution of the movie violated a provision of the McCain-Feingold finance law banning corporate-funded election communications 60 days before an election; Citizens United took corporate donations and failed to disclose other contributors who paid for the movie.
Ted Olson, former solicitor general of the Bush Administration, argued the case for Citizens United. In interviews beforehand, he said, "The most important right we have in a democracy is the right to participate in the electoral process. We've smothered that right with the most incomprehensible, burdensome, unintelligible set of regulations and laws, some of which are criminal laws, surrounding that freedom. That's intolerable." His chief argument was that corporations are individuals under the Constitution, and should be able to express their views.
U.S. Solicitor General Elena Kagan argued the case for the FEC. She countered that election law in the United States has been built on the notion that corporations and unions cannot use their general funds to elect or defeat a candidate, because individual shareholders and union members may not want their money spent that way. She added that the large amount of money that could be spent by corporations and unions would skew and corrupt the system.
Now that corporations and unions are again free to fill the airways with campaign ads, we'll probably find very little room left for programming 60 days before an election.