Erwin Chemerinsky is the dean and distinguished professor of law at the University of California,
Irvine, School of Law. He can be reached at EChemerinsky@law.uci.edu.
supremecourtreview]
The Most
Important
Decision
of the Term
No matter what else happens
this term, the Supreme Court’s
decision in Citizens United v.
Federal Election Commission
almost surely will be its most
important ruling.1 In a 5–4 decision, the
Court declared unconstitutional a provision of the McCain-Feingold Bipartisan Campaign Reform Act of 2002. The
provision limited the ability of corporations and unions to run broadcast advertisements for or against an identifiable
candidate 30 days before a primary or
60 days before a general election for a
federal office.
The Court had upheld this provision
in McConnell v. Federal Election Commission in 2003.2 It had also previously
upheld state laws limiting corporate
spending in election campaigns in Austin
v. Michigan Chamber of Commerce.3 In
Citizens United, the Court expressly
overruled both decisions.
Citizens United arose out of the 2008
presidential election when a conservative political action corporation made a
video-on-demand movie that was critical of then-Democratic candidate Hillary Clinton. The question presented to
the Court was whether the provision of
the McCain-Feingold Act limiting “
electioneering communication” by corporations applied to a video-on-demand
movie. Rather than deciding this issue,
the Court asked for new briefing as to
whether the provision should be declared
unconstitutional and whether McConnell
and Austin should be overruled.
By a narrow majority, the Court did
exactly that, broadly holding that corporations have the same First Amendment
rights as individuals and that restrictions
on corporate campaign spending are
unconstitutional. Disclosures of corporate spending are still required. The
Court focused only on “independent
expenditures” by corporations, or their
ability to spend money on their own in
election campaigns; the constitutional-
Elections will never be the same.
The Court has likely changed the nature
of federal, state, and local elections
across the country. The decision does
not mean that corporations will spend
large amounts in every election or that
such spending will always be decisive.
But corporations will spend heavily in
some elections, and this may make a
huge difference in their outcomes.
One aspect of the decision that has
not yet been analyzed is its effect on
judicial elections. In 38 states, state high
few supreme court decisions are
more important on as many different levels as
Citizens United. It portends even greater changes
in campaign finance laws in the years ahead.”
ity of restrictions on corporate contributions to candidates was not at issue.
The Court was split along ideological lines, with Justice Anthony Kennedy
writing for the Court, joined by Chief
Justice John Roberts and Justices
Antonin Scalia, Clarence Thomas, and
Samuel Alito. Justice John Paul Stevens
wrote a lengthy and vehement dissent.
What does this decision mean for the
future? The implications, on many levels,
are likely to be enormous.
court judges face some form of judicial
election.4 The costs of such elections
in many states have already escalated
tremendously; corporate spending will
drive these costs even higher.
And more corporate spending in
judicial elections will no doubt affect
the number of judges who will have to
recuse themselves from cases that come
before them. Last year, in Caperton v.
A.T. Massey Coal Co., the Court held
that due process required the recusal of
