Supreme Court Decides to Rehear Citizens United Case

On the final day of its 2008-2009 term, the U.S. Supreme Court decided not to issue a ruling in Citizens United v. Federal Election Commission (FEC). Instead, the Court will rehear the case Sept. 9, before the next term officially starts in October. The case challenges the Bipartisan Campaign Reform Act's (BCRA) prohibition on corporate electioneering communications.

Citizens United, a 501(c)(4) nonprofit organization, charges that ads for its 90-minute film, Hillary: The Movie, should not be subject to donor disclosure and disclaimer requirements. The rehearing will address whether the Court should overturn Austin v. Michigan Chamber of Commerce and related sections of McConnell v. FEC, two cases that upheld restrictions on electioneering communications. The case has now expanded and could have major implications for nonprofit groups and other corporations who want to weigh in on policy before an election.

Electioneering communications are broadcast messages that refer to a federal candidate 30 days before a primary election and 60 days before a general election. Section 203 of BCRA prevents corporations (including nonprofits) and labor unions from funding electioneering communications out of their general treasury funds. Any group airing an electioneering communication must identify anyone who contributed at least $1,000 since the beginning of the previous year. Citizens United says a lower court erroneously applied the campaign finance law to its film and organization. The group also argues that BCRA "imposes sweeping restrictions on core political speech."

Citizens United wanted to make the film available for free via cable video-on-demand service during the 2008 presidential primary and accepted some for-profit corporate funding. A federal district court ruled against the group and found that the movie was "susceptible of no other interpretation than to inform the electorate that Senator Clinton is unfit for office."

The Supreme Court's rehearing order [1] states, "The parties should address the following question: 'For the disposition of this case, should the Court overrule either or both Austin v. Michigan Chamber of Commerce and the part of McConnell v. FEC which addresses the facial validity of Section 203 of the Bipartisan Campaign Reform Act of 2002?'"

The Court has asked [2] that both sides file their opening briefs by July 24. The new briefs have to address the ruling in Austin [3], which upheld a state law prohibiting the nonprofit Michigan Chamber of Commerce, funded by dues from for-profit corporations, from running print ads supporting a candidate. The Court found a compelling state interest in preventing corruption or the appearance of corruption by reducing the chance that corporate treasuries influence the outcome of an election.

Citizens United's original brief [4] called for Austin to be overturned, arguing that the case was "wrongly decided and should be overruled because it is flatly at odds with the well-established principle that First Amendment protection does not depend upon the identity of the speaker."

The electioneering communications rule was revised [5] by the FEC in 2007 after the Supreme Court decided Wisconsin Right to Life (WRTL) v. FEC. The revisions limit the electioneering prohibition to ads that are "susceptible of no reasonable interpretation other than as an appeal to vote for or against a clearly identified Federal candidate." In WRTL [6], Justices Kennedy, Scalia, and Thomas argued that Austin should be overruled.

If the electioneering communications provision is struck down, there could be major consequences for the political landscape and the ads voters see during future election seasons. Instead of ruling narrowly as expected, the Court decided to broaden the case, with a new focus on whether two previous rulings on spending restrictions in BCRA should be overturned. The case may now be used to address the constitutionality of campaign finance laws, as well as broader free speech questions.

Scott E. Thomas, a former FEC chairman, told CQ Politics [7]: "[T]he Supreme Court will consider whether corporations and unions can go ahead and can spend unlimited amounts of their shareholders' money or union dues on hard-hitting, negative attack ads that are full-fledged express advocacy. That has to have the American public a little frightened of what they're going to see on their television sets. They're already sick of the saturation that they already see."

The composition of the Court may be different by the time it rehears the case, with the possible inclusion of President Obama's nominee, Judge Sonia Sotomayor. According to SCOTUSBLOG [2], if the Senate approves Sotomayor, "she could be on the bench for the Sept. 9 argument. [I]f she is not however, she could participate in reviewing the case by reading the briefs and listening to the audiotape of the oral argument."