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OPINION

Citizens United was a triumph for free speech

No speech is as protected under the First Amendment as political speech and no political speech is as important as speech advocating whom to vote for, or against, for president.

Former Supreme Court Justice Anthony Kennedy wrote, in the Citizens United decision, that "political speech must prevail against laws that would suppress it." He was right.
Former Supreme Court Justice Anthony Kennedy wrote, in the Citizens United decision, that "political speech must prevail against laws that would suppress it." He was right.NYT

The Citizens United case after 10 years? Let’s recall first what that case was about and why a number of First Amendment aficionados such as myself have been drawn to support what has become one of the most maligned Supreme Court cases in American history.

In 2008, Citizens United was a conservative organization with a yearly budget of about $12 million. A small portion of that money was contributed by for-profit corporations. Citizens United prepared a film harshly denouncing Hillary Clinton at a time when she seemed to be the most likely Democratic nominee for president. (Barack Obama was later nominated and elected.)

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Taken as a whole, as Supreme Court Justice Anthony Kennedy later observed in his majority opinion in the case, the movie was “a full length negative advertisement that urges viewers to vote against Senator Clinton for President,” a presentation that sought to persuade viewers that she was “unfit for the Presidency.” But legislation then in effect criminalized airing — on television, cable, or satellite — advocacy for or against a candidate for president within 60 days of an election and 30 days before a primary if it was even partially funded by a corporation. As a result, the documentary could not be shown at times most likely to persuade viewers whom to vote for — or in this case, against.

From any First Amendment perspective, that was intolerable. No speech is as protected under the First Amendment as political speech and no political speech is as important as speech advocating whom to vote for, or against, for president. That is why the ACLU responded to the Citizens United ruling by explaining that it could “not support campaign finance regulation premised on the notion that the answer to money in politics is to ban political speech.”

Yet because some of the money that funded Citizens United came from corporations, its political advocacy was silenced at the very time it could have had the greatest impact. The 5-4 decision in Citizens United held that any law having that effect violated the First Amendment and that corporations that had contributed to Citizens United could spend money from their corporate treasuries advocating the election or non-election of political candidates just as individuals could. The amounts spent, as federal law required, had to be publicly disclosed. But just as individuals could not constitutionally be limited in the amounts they could expend on political speech, neither could corporations.

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Much of the public response to the Citizens United ruling was apoplectic. People who fully supported controversial Supreme Court rulings that, under the First Amendment, Nazis must be allowed to march and American flags to be burned, were appalled that corporations could play a serious role in the electoral process. The New York Times, itself owned by a corporation that was then the owner of this newspaper, spoke for many when it denounced the ruling on the ground that it would “thrust politics back to the robber-baron era of the 19th century” by allowing “corporations to use their vast treasuries to overwhelm elections.” The San Francisco Chronicle predicted that “voters should prepare for the worst: cash-drenched elections presided over by free-spending corporations.” The Washington Post warned that “corporate money, never lacking in the American political political process, may now overwhelm . . . the contribution of individuals.”

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But nothing of the sort has occurred in the 10 years since the court’s ruling. What is true is that since Citizens United and as a sort of follow-up to it, so-called “super” political action committees were created, into which both individuals and corporations have made contributions. Those from individuals have dwarfed those from corporations. Here are the numbers from the entire 2016 election cycle — all federal elections from January 1, 2015 through December 31, 2016. In that entire time, so-called super PACs received a total of $1.8 billion, according to the Center for Responsive Politics. Of that amount, $1.05 billion came from individuals; labor organizations and other entities contributed $260 million; the contributions of all corporations totaled $113 million. When we compare the largest contributors in 2016, the 10 largest contributions from individuals totaled $377 million; the top 10 corporate contributions totaled less than $39 million. The figures were similar in 2018, a non-presidential year in which a total of about $1.5 billion was contributed to super PACs, of which less than $68 million came from corporations.

As these vast numbers suggest and as is no secret, there remain enormous, often incomparable, disparities in the amount of money held by those in the top fraction of the top one percent of our population and the rest of the public. This might be addressed by tax or other economically focused legislation. As the ACLU has urged, it should not be addressed by limiting speech about who should be elected.

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As Justice Kennedy put it in Citizens United, speech is “the means to hold officials accountable to the people” and “political speech must prevail against laws that would suppress it by design or inadvertence.” That was true a decade ago and it remains true today.

Floyd Abrams is Senior Counsel at the New York law firm of Cahill Gordon & Reindel LLP and a visiting lecturer at Yale Law School. He represented Senator Mitch McConnell in the Citizens United case as amicus curiae and argued orally in support of the Court’s ruling.