1. What if Citizens United had published a book criticizing Hillary Clinton? Does the McCain-Feingold Act apply to the publication of books?

2. Should corporations have constitutional rights?

In an attempt to regulate big money campaign contributions by corporations and labor unions in federal elections, Congress enacted the Bipartisan Campaign Reform Act in 2002 (commonly referred to as the “McCain-Feingold Act”), which imposed a wide variety of restrictions on “electioneering communications,” including an outright ban on issue advocacy advertising or issue ads paid for by corporations and labor unions. Citizens United, a conservative nonprofit corporation, produced a 90-minute documentary called Hillary: The Movie,which criticized then-Senator Hillary Clinton and questioned her fitness for office. The group planned to show the film on cable TV during the upcoming 2008 Democratic presidential primaries. Before releasing the film, Citizens United brought an action in the United States District Court for the District of Columbia against the Federal Election Commission (FEC), the agency in charge of enforcing federal election law. The United States District Court ruled in favor of the FEC, and Citizens United appealed to the U.S. Supreme Court, arguing that the campaign reform finance law violated the First Amendment on its face and when applied to Hillary: The Movieand to the ads promoting the film. 

The U.S. Supreme Court reversed the lower court and ruled in favor of Citizens United by a 5-4 vote. The Court ruled that political spending is a form of protected speech under the First Amendment and that the government may not prevent corporations or labor unions from spending money to support or denounce individual candidates in elections. Although this First Amendment right is not absolute—Congress may continue to restrict corporations from donating money directly to candidates—Congress may not prevent corporations from seeking to persuade the voting public through other means, including TV ads.

“The Court has recognized that First Amendment protection extends to corporations. .  .  . When Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The First Amendment confirms the free-dom to think for ourselves. . . . Modern day movies, television comedies, or skits on Youtube.com might portray public officials or public policies in unflattering ways. Yet if a covered transmission during the blackout period creates the back-ground for candidate endorsement or opposition, a felony occurs solely because a corporation, other than an exempt media corporation, has made the ‘purchase, payment, distribution, loan, advance, deposit, or gift of money or anything of value’ in order to engage in political speech. Speech would be suppressed in the realm where its necessity is most evident: in the public dialogue preceding a real election. Governments are often hostile to speech, but under our law and our tradition it seems stranger than fiction for our Government to make this political speech a crime. Yet this is the statute’s purpose and design.”