Wilton Democratic Town Committee

Citizens United, a non-profit corporation – essentially a PAC – released an unflattering documentary film about Hilary Clinton during the 2008 presidential primary season. It saw as its corporate purpose making this film available to cable TV subscribers at no charge to viewers.

Citizens was frustrated in that respect, however, by a provision of the Bipartisan Campaign Reform Act of 2002 which prohibited any corporation or union from making any electioneering communication (which this film clearly was), within thirty days of a primary or sixty days of a general election. Reversing more than a century of statutory and case law finding that a corporation did not have an absolute right of free speech in the political arena, the Court found these provisions of the BCRA unconstitutional in that they limited the First Amendment rights of corporations. In so doing, the Court chose to overrule two of its decisions which were virtually directly on point.

Seldom has a Supreme Court decision generated such a storm of protest. Seldom have there been such legitimate grounds. The Court ignored precedent, it ignored the time-honored tradition of deciding cases only on the narrowest of grounds. It ignored the fact that the case was moot, since Citizens United would not be able to show the film during the 2008 year after the case was decided. The Court requested briefs on the precise issue of whether its precedents should be overturned, and seemed almost gleeful in determining that the case could not be decided other than on constitutional grounds. It could have chosen to limit its holding to non-profit corporations such as Citizens United – it did not. Without a hint of an apology and with no notion that the effect of its decisions might be undesirable, it extended its holding to overturn all restrictions on the use of corporate funds in election campaigns.

The First Amendment’s guarantee of Freedom of Speech is not absolute. One cannot shout “Fire” in a crowded theater. One cannot slander one’s fellow citizen with impunity. One cannot advertise the goods or property one wishes to sell or lease with casual regard for the truth. In these respects the guarantee gives way to other competing considerations militating in favor of speech limitations. Political speech is, or perhaps was, such an area. Our system of government allows five individuals the power to make unreviewable decisions to determine the relative weight these other concerns may carry. This carries great risk – we have long been aware of it.

The Justices joining in the majority decision consisted of the five members nominated by Republican Presidents (Kennedy, Scalia, Thomas, Roberts and Alito). Citizens was represented by the former Solicitor General of the United States in W’s administration (Theodore Olsen). Champions of free speech have lived on both sides of the aisle. But maybe there is a Republican bias towards permitting corporate involvement in political discourse. Republican underhanded campaign tactics have generally been more successful in recent years – Willie Horton, Swift Boats, etc. Scary.

– Attorney Paul Burnham, DTC member