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Citizens United Prevails At Supreme Court

Dramatic Decision A Huge Victory For 1st Amendment
Photo courtesy of AP

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Citizens United v. FEC Opinion

Politico - Year after ruling: Right gloats, left vows fight by Kenneth P. Vogel - 1/21/11

The first anniversary of the Supreme Court's decision in Citizens United v. Federal Election Commission was marked today in classically Washington fashion – with protests, press conferences, dueling panel discussions, and talk of a new effort by liberal groups to expose some of the conservative non-profits groups that took advantage of the ruling to spend millions of dollars on political ads.

Supporters of the decision did a low-key victory lap, praising the decision in panels, press releases and a slickly produced video featuring majestic orchestral music playing over clips of news footage from the GOP's landslide midterm election victories interspersed with endorsements from, among others, super lawyer Ted Olson, who argued the case and in the video called it "maybe the most important case in history."


David v. Goliath: The One Year Anniversary of Citizens United v. Federal Election Commission

Featuring Speaker Newt Gingrich, Ed Gillespie, Ted Olson, and others, this short video tells the story of how CU v. FEC forever changed the political landscape in America.


WashPost - How the Citizens United ruling freed political speech by David N. Bossie and Theodore B. Olson - 01/21/11

One year ago today, the Supreme Court issued its landmark decision in Citizens United v. Federal Election Commission. It upheld the First Amendment rights of individuals acting through corporations and labor unions to participate in our political process, and it struck down an oppressive thicket of statutes restricting - and even criminalizing - their political speech.

The case arose in 2007, when Citizens United, a grass-roots membership organization, sought to broadcast a film critical of Hillary Clinton, then a candidate for president. The Federal Election Commission deemed the film too critical to be shown in the weeks before an election; if Citizens United had broadcast it, its officers would have been subject to prosecution and potential imprisonment for up to five years. The Supreme Court struck down this prohibition of corporate and labor union election-time speech about candidates as a violation of the First Amendment. To the court's majority, it was "stranger than fiction for our Government to make . . . political speech a crime."

Stranger still were the unwarranted attacks against the Supreme Court that followed. Most visibly, the president used his State of the Union address to...


David v. Goliath: The One-Year Anniversary of Citizens United by David N. Bossie - 1/21/11

One year ago today, on January 21, the Supreme Court released its landmark decision in Citizens United v. FEC. The decision corrected an anomaly in campaign finance law, and in doing so was a tremendous victory for the First Amendment and Americans who wish to participate in our political process.

The case found its origins in 2007 when my group, Citizens United, a membership organization, sought to promote, distribute, and broadcast via video-on-demand a film critical of then-presidential candidate Hillary Clinton. If Citizens United would have done so, we were told by the FEC that it would have been a willful violation of the provisions of the Bipartisan Campaign Finance Reform Act of 2002 (better known as "McCain-Feingold") which prohibited corporations from making independent expenditures and electioneering communications. This violation was not merely subject to a civil fine, but rather a criminal penalty – I personally would have been sent to jail for promoting the film. Citizens United filed a lawsuit against the Federal Election Commission to defend our right to promote and broadcast the film. It took more than two years, but the First Amendment protection of political speech was restored by the Supreme Court in this landmark ruling.

In the year since Citizens United was decided, it has been the subject of countless unwarranted attacks and harsh rhetoric. Senator Al Franken (D-MN) claimed...


Bossie and Olson Comment On The One-Year Anniversary Of The Citizens United Supreme Court Victory - 1/20/11

Tomorrow, January 21, marks the one-year anniversary of the landmark Supreme Court case Citizens United v. FEC. The impact of the case has been to level the playing field in American politics during the 2010 election cycle. Below are statements by David N. Bossie, President of Citizens United, and Theodore B. Olson, the attorney who argued the case before the Supreme Court, reflecting on the anniversary.

David N. Bossie:
"Citizens United v. FEC allowed individuals to be able to participate in the political process through corporations for the first time in decades. Our victory allows non-profit corporations like Citizens United and others to come together with their donors and supporters to educate the American people. America is facing a number of major issues that will shape the course of our country in the years to come. Whether it is the exploding national debt or the fight over health care, the American people must be free to participate in the political process, and have the freedom to debate the most pressing issues of our time without government restrictions. Citizens United v. FEC set down a marker on First Amendment rights that will preserve all Americans' right to free speech."

Theodore B. Olson:
"I think it may be the most important case in history because what that decision said is that individuals, under the First Amendment, cannot be inhibited, cannot be restrained, cannot be threatened, cannot be censored by the government when they wish to speak about elections and the political process. What could be more important than that? This is a robust expression of our fundamental liberties. I think it is the most important decision ever to be rendered by the Supreme Court in connection with the freedom of citizens to participate in the political process."

Business Week - Political Front Groups Have It Backward - 1/18/11

To call organizations that engage in political speech while protecting the identities of their donors "front groups" that are "inherently unethical" ignores our nation's rich history of political speech. When Alexander Hamilton, James Madison, and John Jay published the Federalist Papers, a series of essays that shaped the debate regarding ratification of the U.S. Constitution, they did so anonymously under the pseudonym of "Publius." These founding fathers' words and arguments have stood the test of time and remain essential texts for all who seek to understand our Constitution and our form of government.

The writers of the Federalist Papers count as just one example of anonymous pamphleteers who existed at our nation's founding. Anonymous political speech is a key component of the American system of government. Today groups that include Citizens United, American Action Network, and Crossroads GPS carry on this tradition, engaging in political speech without disclosing the identity of their members. They choose anonymity in order to protect individuals' right to engage in speech without fear of reprisal.

This kind of political speech is protected by the First Amendment but for years...


Weekly Standard - Campaign Finance Myths by William R. Maurer - 11/29/10

Since the Supreme Court ruled in Citizens United v. FEC last January, politicians have vied to see who could speak of the decision with the most vitriol. President Obama said he could not "think of anything more devastating to the public interest" and criticized the ruling in his State of the Union address with members of the Court present. Senator Al Franken called it "an incredible act of judicial activism," while Representative Peter DeFazio is "investigating" whether Chief Justice John Roberts should be impeached.

Politicians were not the only ones to denounce Citizens United. Numerous commentators likened it to Dred Scott, and a Huffington Post writer even compared the five justices in the majority to concentration camp prisoners who cooperated with the Nazis. We can expect the rhetoric only to get worse after the recent elections, where Democrats believe they lost a significant number of seats because of "corporate spending" unleashed by Citizens United.

Unhinged rhetoric aside, however, the critics of the decision almost always get their history wrong, have a selective view of Supreme Court precedent, and fundamentally misread the First Amendment. Read correctly, Citizens United represents a necessary correction to a fairly recent anti-free speech trend in the Court’s jurisprudence and is consistent with both the words and intent of the First Amendment.

Notably absent from many criticisms of the decision is any discussion of what the case was actually about...


Reason Magazine - You Are Now Free to Speak About Politics Why do some people fear a less restricted debate? by Jacob Sullum - 11/19/10

As Democrats headed for what promised to be a midterm election fiasco of historic proportions, a pre-emptive excuse began to circulate: It was all the Supreme Court's fault. In an August Washington Post column, Katrina vanden Heuvel, editor of The Nation, said Citizens United v. Federal Election Commission, the January decision in which the Court overturned restrictions on political speech by corporations, had created a "very alarming" situation in which democracy (not to mention Democrats) would be swept away by "a flood of corporate campaign cash" because "there is no way private citizens can match the resources available to corporations to make their voices heard." In a radio address around the same time, President Barack Obama dreaded "a flood of attack ads run by shadowy groups with harmless-sounding names," unleashed by a ruling that "allows big corporations to spend unlimited amounts of money to influence our elections."

In September a front-page New York Times story seemed to confirm these antediluvian prophecies. The paper reported that "outside groups supporting Republican candidates in House and Senate races across the country have been swamping their Democratic-leaning counterparts on television." The Times worried that "a relatively small cadre of deep-pocketed donors, unknown to the general public, is shaping the battle for Congress in the early going." It said "Democratic officials" believed "corporate interests, newly emboldened by regulatory changes," were trying to "buy the election." In short, the spending patterns seemed to be "a fulfillment of Democrats' worst fears after the Supreme Court's ruling in the Citizens United case."

Except that, as the Times conceded in the next paragraph, "it is not clear...whether it is actually an influx of new corporate money unleashed by the Citizens United decision that is driving the spending chasm." Other factors-"notably, a political environment that favors Republicans"-might be at work. In fact, the spending cited in the story was mostly by rich individuals or by groups organized under Section 527 of the Internal Revenue Code, both of which were legal before Citizens United.


Wash Times - Obama's ironic attack on free speech by Tim Phillips - 10/01/10

In a series of fundraising speeches for Democratic candidates, Mr. Obama has stated repeatedly that because of Citizens United, "there are groups with harmless-sounding names like Americans for Prosperity who are running millions of dollars of ads against Democratic candidates, and they don't have to say who exactly the Americans for Prosperity are. You don't know if it's a foreign-controlled corporation. You don't know if it's a big oil company or a big bank." Unfortunately for him, the president's attack gets both the facts and the law wrong.

The landmark decision in Citizens United v. FCC held that corporations and unions cannot be barred from using general treasury funds to advocate expressly for or against the election of a candidate. The case is a huge free-speech victory, and it explicitly rejects the idea that "in the context of political speech, the government may impose restrictions on certain disfavored speakers." The decision frees for-profit corporations, nonprofits and labor unions to rejoin the rest of the country in expressing their views about candidates for office.

However, Mr. Obama habitually has misrepresented Citizens United. It started at the State of the Union address, when he oddly stated that the case would allow foreign corporations to influence American elections. This is false; foreign nationals and foreign corporations were not affected by Citizens United and are still banned from making independent political expenditures.


New York Post - Dems' New Excuse by Jacob Sullum - 09/25/10

As Democrats head for what promises to be an election fiasco of historic propor tions, a pre-emptive excuse has begun to circulate: It's all because of Citizens United. Team Donkey fans claim the Jan. 21 decision, in which the Supreme Court overturned restrictions on the political speech of corporations, triggered a flood of negative advertising by what President Obama calls "shadowy groups with harmless-sounding names."

If independent groups favoring Team Elephant have a spending advantage so far, it's not because of recent changes in the law. Most of the advertising that irks Democrats was legal before Citizens United.


Big Government - Senator Schumer’s Attempt to Silence Political Speech by David N. Bossie - 08/25/10

When Senator Chuck Schumer staged an elaborate press conference on the steps of the Supreme Court to unveil his Democracy is Strengthened by Casting Light on Spending in Elections Act ("DISCLOSE Act") he noted that:

"Anyone who wants to hide, will not do an ad after this legislation passes. And I think there are a lot of people who like to hide … so I think there’ll be many fewer of them."

His words revealed the true motivation of this legislation – it is not transparency but rather silencing speech in this critical election year. The Supreme Court in Citizens United v. FEC restored the First Amendment protection to political speech. Small businesses, corporations, unions, and membership based organizations may now have a voice in the public discourse. The Democratic leadership that is tasked with re-electing incumbent politicians and trying to minimize Democratic losses this November...


Stop Playing Politics, Start Focusing on the Economy by David N. Bossie - 08/14/10

On July 27, 2010 the Senate failed to advance the Democracy is Strengthened by Casting Light on Spending in Elections Act (“DISCLOSE Act”). The leaders of the Democratic Party including Majority Leader Harry Reid, Senator Chuck Schumer, and President Barack Obama crafted the legislation to silence speakers whose rights were restored by the Supreme Court decision Citizens United v. FEC.

While Congressional leaders spent six months reacting to the Citizens United decision our economy continued to teeter on the brink. The liberal elites focused their energies on the DISCLOSE Act rather than focusing on meaningful fiscal policy to help strengthen our economy.

Reid and Schumer had planned to pass the DISCLOSE Act by the Fourth of July so that they could regulate and silence political speakers in the November elections. Once this was no longer a viable option, I assumed they would return to the business of promoting economic growth, saving jobs, and preventing massive tax increases from stifling our economy.


Charlotte Observer - In Disclose Act, Democrats are muzzling free speech by George Will - 07/09/10

WASHINGTON Two splendid recent developments have highlighted how campaign finance "reforms" have become the disease they pretend to cure. In Arizona and in Congress, measures ostensibly aimed at eliminating corruption or the "appearance" thereof illustrate the corruption inherent in incumbents writing laws that regulate political competition by rationing political speech.

The Supreme Court has blocked implementation of Arizona's Clean Elections Act. Under it, candidates who accept taxpayer funding of their campaigns receive extra infusions of tax dollars to match funds raised by competitors who choose to rely on voluntary contributions. The law punishes people who do not take taxpayer funds.


USA Today - Campaign finance shaped 2009-10 term - 07/01/10

WASHINGTON — After nine months and 73 decisions, the Supreme Court's newly concluded 2009-10 term is defined by a single case whose continuing political ramifications were on display this week in Senate hearings for Elena Kagan.

Citizens United v. Federal Election Commission, which stripped away federal limits on corporate and union spending in political campaigns, was invoked repeatedly — by Democrats and Republicans— during the questioning of high court nominee Kagan. Reverberations are likely into the fall elections and the next term.


Weekly Standard - Why Obama Chose Kagan - 05/24/10

In January, in Citizens United v. Federal Election Commission, the Supreme Court held that under the First Amendment Congress may not limit corporate and union funding of independent political broadcasts in candidate elections. The Court overturned one of its own rulings and a provision of the McCain-Feingold legislation enacted in 2002. The decision has drawn impassioned and frequent rebukes from President Obama, who said the day it came down that it would empower "special interests and their lobbyists" at the expense of "average Americans who make small contributions to support their preferred candidates." He criticized Citizens United during his State of the Union speech, with most of the justices in attendance, and, when John Paul Stevens, who wrote a lengthy dissent in Citizens United, announced his retirement, Obama cited it as the kind of decision he didn't want the next justice to support.

Last week, introducing solicitor general Elena Kagan as his choice to replace Stevens, Obama again brought up Citizens United. He mentioned it as evidence that Kagan was on the side of average Americans. "She defended bipartisan campaign finance reform against special interests seeking to spend unlimited money to influence our elections," he said. Her work on the case, Obama went on, "says a great deal about her commitment to protect our fundamental rights, because in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens."


Politico - McConnell attacks Kagan over Citizens United - 05/16/10

Senate Minority Leader Mitch McConnell tried a new line of attack against the president's high court nominee Sunday, asserting that she has been supportive of banning pamphlets and other campaign literature.

"Solicitor Kagan's office, in the initial hearing, argued that it'd be okay to ban books," the Kentucky Republican said on NBC's "Meet the Press. Sunday. "And then when there was a re-hearing, Solicitor Kagan herself, in her first Supreme Court argument, suggested that it might be okay to ban pamphlets. I think that's very troubling."

McConnell was referring to the government's argument in the controversial Citizens United case, in which the Supreme Court ruled that corporate funding in campaigns can't be limited by the First Amendment. In the initial hearing of the case, which took place just five days after Kagan was confirmed by the Senate, Deputy Solicitor General Malcolm Stewart responded to a line of questioning by Chief Justice John Roberts about whether or not the law the government was arguing for could apply to a book that advocated a specific candidate by saying "We could prohibit the publication of the book."


AmSpec - Citizens United We Stand - 05/07/10

March 24, 2009, was a turning point in the long-running battle to restrict political speech, aka "campaign finance reform." On that day, the Supreme Court heard oral argument in Citizens United v. Federal Election Commission, in which the conservative activist group Citizens United challenged the provisions of the McCain-Feingold law that had prohibited it from airing a documentary film, Hillary: The Movie, through video on demand within 30 days of any 2008 Democratic presidential primary.

In the course of the argument, Deputy Solicitor General Malcolm Stewart, an experienced Supreme Court litigator, argued that a 1990 precedent, Austin v. Michigan Chamber of Commerce, gave the government the power to limit any political communication funded by a corporation, even a nonprofit such as Citizens United. Justice Samuel Alito asked Stewart if that power would extend to censoring political books published by corporations. Stewart responded -- consistent with the government's position at all stages of the case -- that yes, it would. There was an audible hush -- if such a thing is possible -- in the court. Then Justice Alito, appearing to speak for the room, merely said, "I find that pretty incredible."


The Hill - GOP brings in legal heavyweights to fight campaign finance bill by Susan Crabtree - 05/06/10

House Republicans stepped up their attacks on the Democrats’ campaign finance legislation, bringing in legal heavy-hitters to testify at a House Administration meeting.

Former U.S. Solicitor General Ted Olson and Citizens United President Dave Bossie, whose group challenged the federal ban on political advertisements, testified before the committee Thursday on behalf of the Republicans.


Politico - Dems launch Citizens United bill by Kenneth Vogel - 04/29/10
Citizens United President David N. Bossie: "This bill is nothing more than an incumbent protection bill that aims to chill free speech"

Democratic senators took to the steps of the Supreme Court on Thursday morning to introduce legislation intended to blunt the impact of the court's January decision, in Citizens United v. Federal Election Commission, which they said will open the floodgates to unlimited corporate and special interest spending on campaign advertising in the 2010 congressional midterm elections.

The bill and companion House legislation, which lawmakers intend to officially introduce later in the day, was endorsed by President Barack Obama, who in his State of the Union Address in January singled out the court for criticism for its ruling and urged Congress to act swiftly to address issues it raised. In a statement issued by the White House, he urged Congress to move quickly on the legislation, which he called "a critical step in restoring our government to its rightful owners: the American people."

The legislation includes provisions to limit political ad spending by companies that received government bailouts from the Troubled Asset Relief Program, as well as those with government contracts or that are more than 20 percent foreign owned. The legislation will also give political parties access to reduced rate air time to respond to special interest ads, and heighten disclosure requirements, forcing groups airing certain ads to name their top five donors on screen and on their websites, as well as possibly forcing corporate CEO's to appear in the ads.


Politico - Dems launch Citizens United bill by Kenneth Vogel - 04/29/10
Citizens United President David N. Bossie: "This bill is nothing more than an incumbent protection bill that aims to chill free speech"

Democratic senators took to the steps of the Supreme Court on Thursday morning to introduce legislation intended to blunt the impact of the court's January decision, in Citizens United v. Federal Election Commission, which they said will open the floodgates to unlimited corporate and special interest spending on campaign advertising in the 2010 congressional midterm elections.

The bill and companion House legislation, which lawmakers intend to officially introduce later in the day, was endorsed by President Barack Obama, who in his State of the Union Address in January singled out the court for criticism for its ruling and urged Congress to act swiftly to address issues it raised. In a statement issued by the White House, he urged Congress to move quickly on the legislation, which he called "a critical step in restoring our government to its rightful owners: the American people."

The legislation includes provisions to limit political ad spending by companies that received government bailouts from the Troubled Asset Relief Program, as well as those with government contracts or that are more than 20 percent foreign owned. The legislation will also give political parties access to reduced rate air time to respond to special interest ads, and heighten disclosure requirements, forcing groups airing certain ads to name their top five donors on screen and on their websites, as well as possibly forcing corporate CEO's to appear in the ads.


Wash Post - Citizens United challenges the strident side of Supreme Court ruling - 04/01/10

Fresh off a landmark victory in the U.S. Supreme Court, the conservative advocacy group Citizens United is trying to get around one part of the ruling it didn't like. The group's attorney, former solicitor general Theodore B. Olson, sent a letter to the Federal Election Commission on Monday arguing that Citizens United should not be subject to campaign-finance disclosure requirements because it is actually a "press entity" that produces and distributes documentary films.

The FEC exempts media organizations from campaign-finance laws even though many of them -- such as The Washington Post -- traffic heavily in political news and views. The FEC, Olson wrote, "should conclude that Citizens United's documentary film activities are covered by both the media and commercial transaction exceptions."


Daily Caller – (Blackwell) Hail to the Chief Justice - 03/12/10

When the young John Roberts was confirmed as Chief Justice of the United States in 2005, he declined to put those gold stripes on his robes. They're the ones that the late William Rehnquist had devised to indicate his status as first among equals on the nation's high court. "I'll have to earn them," Roberts said modestly. He just did. He gave a powerful rejoinder this week to President Obama's unprecedented foray into demagoguery.

It's more than a tempest in a teapot. Last January, President Obama took the unheard of step of criticizing a U.S. Supreme Court ruling during his State of the Union address. With most of the black-robed Justices seated in front of him, Mr. Obama went out of his way to knock the court's 5-4 ruling in the case of Citizens United v. Federal Elections Commission. The high court ruled, narrowly, that major parts of the McCain-Feingold campaign finance law are unconstitutional. Mr. Obama stated, and liberal media outlets echoed his charge, that this would allow corporations and unions to give directly to campaigns.

The high court majority essentially found that you don't lose your First Amendment rights because you are a business, or a union. You can still praise or criticize a candidate for public office. The McCain-Feingold Act was one of the worst infringements of free speech since the infamous Alien and Sedition Acts of 1798. In very practical terms, that law gave the New York Times, CBS News, and the increasingly rabid MSNBC free rein, while putting a muzzle on non-profits like Family Research Council, National Right to Life Committee, and the Sierra Club.


Wash Post – (Eugene Robinson) John Roberts gets it right (for once) - 03/11/10

Chief Justice John Roberts is wrong about a lot of things — most things, actually — but he may be right when he suggests that he and his black-robed colleagues should give the State of the Union address a pass. Their presence looks like a tradition whose time has come and gone.

"To the extent the State of the Union has degenerated into a political pep rally, I'm not sure why we're there," Roberts said Tuesday at the University of Alabama, elucidating the obvious. Politics? At the State of the Union? Let's all pause for a moment while we get over the shock.

Roberts was complaining about the moment in January's speech when President Obama blasted the court's anything-goes decision on campaign finance. Six justices were in attendance, including three who voted with the majority; Justice Samuel Alito couldn't keep himself from mouthing the words "not true" and shaking his head. Much comment ensued.


Huff Post - Liberals Overreact to Citizens United by Jeff Norman - 03/11/10

Even biased judges sometimes decide cases correctly, and with free speech experts of all stripes applauding the Citizens United decision, it's far from apparent the Supreme Court falsely interpreted the First Amendment for political or ideological reasons.

Refuting conventional wisdom that the man who wrote the majority opinion was nefariously motivated, left-leaning constitutional scholar Jonathan Turley told Keith Olbermann: "[Justice Anthony] Kennedy is no corporate shill. He really believes in this. I've talked with him, and many people have talked with him. He does believe in the First Amendment aspects of this, and for him it is all about criminalizing speech. It's all about limiting speech." Liberal blogger Glenn Greenwald added: "If a settled proposition of law is sufficiently repugnant to the Constitution, then the Court is not only permitted, but required, to uproot it."


CBS - White House Vs. Supreme Court: It's Getting Ridiculous by Jan Crawford - 03/11/10

Supreme Court Chief Justice John Roberts address students at the University of Alabama Law School in Tuscaloosa, Ala., March 9, 2010. For the life of me, I just don't get why the White House continues to try to pick a fight with the Supreme Court. I've suggested before that perhaps it's a sign President Obama intends to tap an outsider when John Paul Stevens retires, so he can beat the drum that the Court is out of touch with everyday Americans.

But after Chief Justice John Roberts made some entirely reasonable remarks yesterday -- and White House Press Secretary Robert Gibbs just had to respond -- it's now getting ridiculous. Whether the White House has a short-term or long-term strategy or no strategy at all, it's flat-out absurd and ill-advised for the administration to think it should always have the last word. It's like my 6-year-old: "I don't LIKE your idea. I like MY idea."

It wasn't enough that Mr. Obama, for the first time in modern history, took a direct shot at the Supreme Court in his State of the Union address, when he slammed the justices for their recent campaign finance reform decision. Six of them looked on -- including the author of the opinion, key swing vote Anthony Kennedy -- while Democrats jumped up to whoop and holler.


Fox Business - Washington Post Still Doesn’t Understand Supreme Court Ruling by John Stossel - 02/17/10

Almost a month after the Supreme Court ruled in Citizens United that Congress cannot restrict the ability of unions and corporations -- that is, groups of individuals pooling their resources -- to advertise on behalf of or in opposition to a political candidate, much of the media continue to distort the ruling and the law. This morning the Washington Post’s editors approved this line:

[The] Supreme Court ruling allows corporations and unions to spend as much as they want on political campaigns...

It would be fine if the court had actually allowed that. Spending on political campaigns is a form a speech and the First Amendment does say, "Congress shall make no law...abridging the freedom of speech." But in fact, the court didn’t allow that. Corporations and unions still face bans on direct contributions to candidates--they are explicitly not free to spend as much as they want on political campaigns. Invariably, the media describes this specific ruling in the broadest terms, as if the Supreme Court unleashed some wild beast upon our defenseless democracy. After reading such relentlessly false descriptions of what the court actually said, it comes as no surprise that the public apparently opposes the "ruling"...


Politico - Hypocrisy in Citizens United chatter by David N. Bossie - 2/02/09

While the Supreme Court’s decision in Citizens United v. Federal Election Commission did not lack for punditry to begin with, President Barack Obama’s nearly unprecedented scolding of the court during his State of the Union address has pushed the Washington commentariat into overdrive. Instead of rehashing the president’s (misleading at best) remarks, I think it’s important that we take a step back and look at the fundamental issues behind this case.

Washington has a way of inducing selective amnesia in our elected representatives. Many states, including Illinois and Maryland, allow corporate contributions to state candidates. As an Illinois state senator, Obama accepted direct contributions from the corporate treasuries of Citigroup and London-based pharmaceutical giant AstraZeneca, among others. As a Maryland state legislator, Democratic Rep. Chris Van Hollen, one of the more hysterical critics of the decision, accepted from business entities about 10 percent of his campaign funds during the four years leading up to his election to Congress.

If, as these detractors and their allies would have us believe, corporate money is by definition corrupting, why did they accept these funds when doing so benefited them? Note that the Citizens United ruling left intact the ban on corporate contributions to federal candidates, so contributions such as those Obama and Van Hollen took as state lawmakers remain illegal for federal office seekers.


Hannity - Newt Gingrich Discusses Citizens United's Supreme Court Case - 01/29/10

Newt Gringrich discusses Citizens United's Supreme Court Case
Citizens United discussion starts at 6:45 in clip


Senate Minority Leader Mitch McConnell Corrects President Obama About Citizens United Supreme Court Case

National Review - First Amendment 451 by Robert Costa- 01/29/10

David Bossie irritates President Obama. Bossie did not get the usual upturned chin or expletive-riddled call from Rahm Emanuel this week after the Supreme Court ruled in favor of Citizens United, his non-profit corporation, in a landmark free-speech decision. Rather, Obama decided to take a potshot through a sharp-edged rant tucked into the State of the Union.

"With all due deference to separation of powers, last week the Supreme Court reversed a century of law to open the floodgates for special interests — including foreign corporations — to spend without limit in our elections," Obama said. "Well, I don't think American elections should be bankrolled by America's most powerful interests, or worse, by foreign entities."

Bossie's take on Obama's finger-wagging was similar to what Justice Samuel Alito mouthed, and similar to the analysis Bradley A. Smith and Shannen Coffin have presented on the Corner: "Not true." Foreign corporations, Bossie says, are prohibited from making contributions in connection with American elections, and that wasn't even at issue in the case. The president's anger over the Court's 5–4 decision, he adds, actually reveals something more troubling: Obama doesn't like it when someone tries to snatch power from the federal government and put it back in the hands of the American people.


Palin/Hannity Discuss Justice Alito's 'Not True' Moment During SOTU

National Review - Defending Citizens United by Anthony Dick - 01/25/10

Bad arguments have been proliferating in the wake of this week's Citizens United case, which struck down restrictions on political expenditures by corporations and unions. The opinion leaves in place limits on campaign donations, but frees up corporations and unions to spend as much as they like to disseminate political messages. Here is a rogue's gallery of the most common arguments I've heard against the holding, followed by brief explanations of their profound misguidedness.

1) This 5–4 decision is a blatant example of judicial activism, and conservatives are hypocritical for supporting it. Judicial activism occurs when judges abandon constitutional or statutory meaning and impose their policy preferences instead. A decision that faithfully applies the First Amendment is not activism but rather ...


Wash Times - BOSSIE: 'Congress shall make no law . . .' by David N. Bossie - 01/22/10

Writing for the Supreme Court of the United States in Citizens United v. Federal Election Commission yesterday, Justice Anthony M. Kennedy noted that campaign-finance laws required that "a speaker wishing to avoid criminal-liability threats and the heavy costs of defending against FEC enforcement must ask a governmental agency for prior permission to speak."

Think about that for a moment: Citizen of the United States needed to seek permission from a government agency before speaking about a politician who ostensibly is a representative of the people. Not only that, but a citizen who spoke without government permission was at risk of a prison sentence.

In 2007, Citizens United Productions released a film entitled "Hillary The Movie."Naturally, we wanted to advertise our film and distribute it to those who wished to see it via cable "on-demand." In an unconscionable violation of our First Amendment rights, the government restricted us from doing so because the film and the advertisements that I produced referenced a candidate for federal office.

I was stunned by the government's decision. I believe that, above every other category of speech, political speech must be the most protected. If our right to political speech can be denied by the government, how are we to hold our representatives to that government accountable for their actions? If we are not permitted to speak about our own government, can it truly be considered "our" government?


Hardball: New rules established for campaign financing - 01/21/10

Jan. 21: David Bossie of Citizens United talks about the new ruling by the Supreme Court to allow corporations to spend money to support or oppose political candidates and will most likely allow labor unions to do the same.

AP - Justices Reject Campaign Finance Limits - 01/21/10

WASHINGTON (AP) -- The Supreme Court has ruled that corporations may spend freely to support or oppose candidates for president and Congress, easing decades-old limits on their participation in federal campaigns.

By a 5-4 vote, the court on Thursday overturned a 20-year-old ruling that said corporations can be prohibited from using money from their general treasuries to pay for their own campaign ads. The decision, which almost certainly will also allow labor unions to participate more freely in campaigns, threatens similar limits imposed by 24 states.

It leaves in place a prohibition on direct contributions to candidates from corporations and unions.

Critics of the stricter limits have argued that they amount to an unconstitutional restraint of free speech, and the court majority apparently agreed.

"The censorship we now confront is vast in its reach," Justice Anthony Kennedy said in his majority opinion, joined by his four more conservative colleagues.

However, Justice John Paul Stevens, dissenting from the main holding, said, "The court's ruling threatens to undermine the integrity of elected institutions around the nation."

Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor joined Stevens' dissent, parts of which he read aloud in the courtroom.

The justices also struck down part of the landmark McCain-Feingold campaign finance bill that barred union- and corporate-paid issue ads in the closing days of election campaigns.

Advocates of strong campaign finance regulations have predicted that a court ruling against the limits would lead to a flood of corporate and union money in federal campaigns as early as this year's midterm congressional elections.

The decision, written by Justice Anthony Kennedy, removes limits on independent expenditures that are not coordinated with candidates' campaigns.

The case also does not affect political action committees, which mushroomed after post-Watergate laws set the first limits on contributions by individuals to candidates. Corporations, unions and others may create PACs to contribute directly to candidates, but they must be funded with voluntary contributions from employees, members and other individuals, not by corporate or union treasuries.


SCOTUSBlog - Special sitting tomorrow, opinion(s) due - by Lyle Denniston - 1/20/2010

Chance for Citizens United ruling

The Supreme Court will hold a special public session on Thursday at 10 a.m., the Court announced at the close of this morning's oral arguments. Although no purpose for the sitting was specified, no arguments are scheduled, so it almost certainly will be to release opinions — perhaps the long-awaited ruling on campaign finance regulation. Such sessions are highly unusual, but so is the campaign finance case, involving a major constitutional controversy. Read more...

David Bossie's Response to Senators McCain and Feingold's Remarks on CU v. FEC

"To accept Senators McCain and Feingold's remarks on the Senate floor yesterday at face value would require an objective listener to turn a blind eye to the facts at hand. Senator Feingold took an alarmist tone, warning that elections would somehow turn into corporate sponsored events like a NASCAR race. But that statement belies a willful ignorance of elections, such as the one about to take place in Virginia, in which corporate spending is legal and no allegations of any impropriety have been made.

"Senator McCain's umbrage at Justice Scalia's observation that Congress is self-interested, and that his comment in that regard is 'an affront to the thousands of good, decent, honorable men and women who have served this nation in these halls' similarly defies reason and logic. If a simple statement by a Justice of the Supreme Court can impugn the integrity of every man and woman who has served in Congress, what of a law that, at its essence, is a testament to Senators McCain and Feingold's apparent belief that Members of Congress lack the integrity to resist corporate influence?

"But most fundamentally, Congress is tasked with passing legislation and the Supreme Court's job is to determine whether or not those laws infringe on the fundamental rights delineated by the Constitution. The restrictions on free speech that Senators McCain and Feingold so passionately defended yesterday led the government to state in open court that the only thing standing in the way of banning commercially published books containing the phrase 'vote for X' was that the legislature had not yet passed such a law. Such a law cannot be far down the long and slippery slope that Senators McCain and Feingold so proudly grease under the guise of campaign finance reform legislation.

"It is my hope that the Supreme Court will recognize the dangers that lay ahead if we continue on our current path and put an end to the pattern of unconstitutional attempts by the legislature to erode our First Amendment rights as citizens of the United States."

Wash Times - First Amendment under fire by David N. Bossie- 9/9/09

The First Amendment to the U.S. Constitution provides that "Congress shall make no law ... abridging the freedom of speech." The Framers' clear intent was first and foremost to protect political speech. Today, in a rare summer session, the Supreme Court will hear arguments as to whether it should overrule two previous, and in my opinion incorrectly decided, rulings on political free speech. Namely, the justices will decide whether or not to allow Austin v. Michigan State Chamber of Commerce and a significant section of McConnell v. Federal Election Commission, to stand, and in doing so, how far the First Amendment goes to protect the right of organizations to support or criticize candidates for federal office.

In 2007, Citizens United, the grass-roots advocacy group that I head, produced a documentary titled "Hillary The Movie" about Hillary Rodham Clinton and sought to show, sell and promote the film when public interest in it would be at its height in January 2008. Unfortunately for us (and our film sales), under federal election law, we could produce our film but could not advertise its existence on television and radio, nor could we give cable subscribers the opportunity to view the film in an "on demand" format.

The legal basis for banning our movie from the airwaves is that the McCain-Feingold campaign finance law prohibits corporations from engaging in political speech and that Citizens United, though a nonprofit corporation, is still a corporation, and all corporate money is banned, no matter what.


CBS News - 'Hillary Movie' Debacle - 9/6/09

Wall Stree Journal - (Olson Op-Ed) The Chance for a Free Speech Do-Over by Theodore B. Olson - 9/8/09

Public discussion about the character and fitness for office of presidential candidates is at the core of the First Amendment's command that "Congress shall make no law . . . abridging the Freedom of Speech." Yet Congress, in its zeal to impose onerous campaign-finance restrictions, has made political speech a felony for one class of speakers. Corporations and unions can face up to five years in prison for broadcasting candidate-related advocacy during federal elections.

Is outlawing political speech based on the identity of the speaker compatible with the First Amendment? Tomorrow, the Supreme Court will hear arguments to determine the answer to this question.

The case—Citizens United v. Federal Election Commission—involves a 90-minute documentary produced by Citizens United, a small nonprofit advocacy corporation. "Hillary: The Movie" examines the record, policies and character of the former New York senator, now Secretary of State, Hillary Rodham Clinton. The documentary was set to be broadcast during Mrs. Clinton's presidential primary campaign. But the broadcast was banned when the Federal Election Commission declared that the broadcast would violate the 2002 McCain-Feingold campaign finance law.


The Partys' Supplemental Question Reply Briefs Filed

Citizens United's Supplemental Reply Brief

FEC's Supplemental Reply Brief

Supplemental Question Amicus Briefs Filed

Supporting Citizens United
Alliance Defense Fund
American Civil Rights Union
American Justice Partnership
California Broadcasters Association
California First Amendment Coalition
Campaign Finance Scholars
Cato Institute
Center for Competitive Politics
Center for Constitutional Jurisprudence
Fidelis Center
Former FEC Commissioners
Free Speech Defense & Education Fund
Institute for Justice
Judicial Watch
Michigan Chamber of Commerce
Pacific Legal Foundation
Reporters Committee
Senator Mitch McConnell
US Chamber of Commerce
Wyoming Liberty Group

Supporting FEC
American Independent Business Alliance
Campaign Legal Center
Center for Independent Media
Center for Political Accountability
Committee for Economic Development
Justice at Stake
League of Women Voters
Norman Ornstein
Rep. Chris Van Hollen
Senator John McCain
The Sunlight Foundation

Supporting Neither Citizens United Nor FEC
Former Officials of the ACLU
Hachette Book Group
Various States

Citizens United
Files Supplemental Brief

"'Enough is enough.'... When the government of the United States of America claims the authority to ban books because of their political speech, something has gone terribly wrong and it is as sure a sign as any that a return to first principles is in order."
Read More Brief Excerpts

Supplemental Briefs
Citizens United Supplemental Brief
FEC's Supplemental Brief

Redstate - Citizens United: The Government Presses Its Case to Regulate Political Speech - 7/28/09 by Brad Smith

Earlier this year, at Supreme Court oral argument in the case of Citizens United v. Federal Election Commission, the government raised eyebrows by arguing that it believed that it can constitutionally ban the publication of books (if, as is always the case, the publisher is a corporation) that contain even one line arguing for the election or defeat of a candidate for federal office. The government based its belief on the Supreme Court's 1990 decision in Austin v. Michigan Chamber of Commerce, which upheld a blanket ban on corporate political spending in order to prevent "distortion" of campaigns. Faced with the full constitutional ramifications of Austin - for the government's position flows naturally from Austin - the Supreme Court asked the parties to reargue the case on September 9, to consider whether Austin should be overruled.

Austin was based on the assumption that the government could limit some speech in order to enhance the voices of others, although the case tried not to frame it that way. Rather, the Austin Court argued it was dealing with a "different type of corruption, the corrosive and distorting effects of immense aggregations of wealth… ." To most people, that sounds like an egalitarian argument, not one about "corruption." Which would be fine - it is perfectly acceptable to favor things on egalitarian grounds - except that the First Amendment to the Constitution appears to forbid the government from making such determinations.


Election Law Blog - The Government's Remarkable Supplemental Brief in Citizens United: No Mention of Corporate "Distortion" - 07/27/09

On the last scheduled day of the Court's term in June, the Court issued an order in Citizens United v. Federal Election Commission requiring the parties to brief whether the Court should overturn two cases upholding corporate (and union) independent spending in candidate elections: Austin v. Michigan Chamber of Commerce and the relevant portion of McConnell v. FEC.

The briefs were filed Friday. I have now had a chance to review the government's supplemental brief and Citizen United's supplemental brief. (Amicus briefs are due Friday, and simultaneous reply briefs are due August 19).

There is much to like about the government's brief, and I have more about that below. But let me begin with the most interesting feature of the brief: the government does not even mention the central holding of Austin, much less defend it. To put this in context, before Austin, in Buckley v. Valeo the Court had held that contributions to candidates could be limited because of the government's interest in preventing the corruption of elected officials (through quid pro quos and otherwise) and the appearance of such corruption, but that independent spending by individuals could not be limited consistent with the First Amendment. With truly independent spending, the Court in Buckley said, the link to corruption of candidates is too tenuous, and the costs to freedom of speech and association too high to justify such limits. Buckley did not deal with corporate spending limits, but in a 1981 case, First National Bank of Boston v. Bellotti, the Court held that corporate spending limits in ballot measure elections, in which candidates are not involved, are unconstitutional. In Austin, however, the Court held that corporate spending limits are constitutional.


Legal Times - September Argument Debut for SG Kagan - 07/20/09

Solicitor General Elena Kagan plans to make her first argument before the Supreme Court on Sept. 9 in the case of Citizens United v. Federal Election Commission, the so-called "Hillary - The Movie" case. Justice Department spokeswoman Beverley Lumpkin today confirmed reports that Kagan plans to argue the case.

It's the oral argument the Supreme Court ordered as it recessed for the summer, to consider whether Austin v. Michigan Chamber of Commerce and part of McConnell v. FEC should be overturned. The scheduling of the rare summer argument alarmed supporters of campaign finance reform who fear the Court is preparing to overturn the ban on use of corporate or union treasury money for independent campaign expenditures. Briefs on the issues set forth by the Court are due this week.

Deputy Solicitor General Malcolm Stewart represented the government in the first oral argument in March as we reported here, arguing that a movie critical of then-presidential candidate Hillary Clinton that was funded by corporate money should be regarded as an "electioneering communication" regulated under the McCain-Feingold law. Stewart ran into trouble, however, when he seemingly acknowledged that the law could also in theory justify the banning of campaign-related books in some circumstances. That drew dubious reactions from several justices.

In the September argument Kagan will face one of her predecessors: former SG Theodore Olson, now with Gibson, Dunn & Crutcher, who will argue for Citizens United, sponsors of the movie. As SG under President George W. Bush, Olson defended the law he now challenges.


Citizens United v. FEC - Cato Institute

The number of matters in which the process became the penalty, causing people to simply forgo political participation because of the burdens of the law, is striking. In one recent FEC matter, a local party committee offered to stay out of federal elections in order to reduce a civil penalty. In another, the FEC sued a defeated candidate and sought more than $300,000 in penalties. A judge awarded a mere $7,000. Because of cases like these, I proposed numerous reforms that promote agency transparency and increase due process and compliance (as opposed to "gotcha" enforcement that has permeated the commission in past years). Several have recently been implemented, much to the chagrin of the "reformers" who boycotted a public hearing on this very subject.

When people can afford to fight such agency action, they usually win. One House candidate who thought his First Amendment rights had been chilled by McCain-Feingold's so-called millionaires amendment sued, and after years of litigation, the Supreme Court struck down the law. A few years ago, a nonprofit attempted to run TV ads urging Sen. Russ Feingold not to block judicial nominations.


Columnist E.J. Dionne Jr. decried the Supreme Court's decision to hear re-argument in Citizens United v. Federal Elections Commission -- which could result in corporations being freed to speak in elections after 60 years of government censorship -- as "extreme" and "activist" ["The Real Court Radicals," op-ed, July 13]. But judges are supposed to protect political speech, regardless of the speaker. Our system depends on this sort of principled judicial engagement, even when it means reversing earlier, erroneous Supreme Court decisions.

Corporations, no less than any other association of individuals, deserve the right to speak out about candidates and policies that may affect them. Indeed, media corporations such as The Washington Post Co. already enjoy this right. If Mr. Dionne is worried that businesses will use this freedom to secure favors from the government, the correct response -- the constitutional response -- is to restore limits on the power of government to dispense favors. The First Amendment demands nothing less.


What They're Saying

"Ever since McCain-Feingold was enacted in 2002, Citizens United has been on the front lines of the battle against it. After seven years of fighting, we are now just one decision away from knocking down a huge section of law that restricts our right to free speech. Please join Citizens United and me in our fight for the First Amendment rights of every American."

-Newt Gingrich, Former Speaker of the U.S. House of Representatives

"Citizens United v. FEC is the best chance that we have to overturn some of the most egregiously restrictive aspects of campaign finance law. This is a historic opportunity to strike a blow for the First Amendment."

-Ted Olson, Lead Counsel for Citizens United and Former United States Solicitor General

Court Documents

U.S. Supreme Court - Case No. 08-205

Citizens United Filings
FEC Filings
Amicus Briefs Supporting Citizens United
Supplemental Question
Amicus Briefs Supporting FEC
Supplemental Question
Re-Argument Issues
Court Orders & Opinions

U.S. Supreme Court - Case No. 07-953

Citizens United Filings
FEC Filings
Court Orders & Opinions

U.S. District Court - Case No. 07-2240

Citizens United Filings
FEC Filings
Other Filings
Court Decisions & Orders

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