Dissent in Citizens United v. Federal Election Commission
558 U.S. 310 (2010) (2010) · Supreme Court of the United States
Citizens United held that the First Amendment prohibits the government from restricting independent political expenditures by corporations, associations, and labor unions. The decision struck down key provisions of the Bipartisan Campaign Reform Act and overruled Austin v. Michigan Chamber of Commerce, transforming campaign finance law and enabling unlimited corporate spending in elections.
What was the dissent in Citizens United v. Federal Election Commission?
Justice Stevens wrote a lengthy 90-page dissent, joined by Justices Ginsburg, Breyer, and Sotomayor, arguing that corporations are not natural persons and that the Founders did not intend the First Amendment to protect corporate political spending. Stevens contended that the majority's ruling would unleash a torrent of corporate money into elections and corrupt the democratic process.
Source: Read Citizens United v. Federal Election Commission on Google Scholar
Case Overview
Facts
Citizens United, a nonprofit corporation, produced a documentary film called 'Hillary: The Movie,' which was critical of then-Senator Hillary Clinton during the 2008 Democratic presidential primaries. Citizens United wanted to distribute the film through video-on-demand within 30 days of the primaries. The Bipartisan Campaign Reform Act (BCRA, also known as McCain-Feingold) prohibited corporations and unions from funding 'electioneering communications' -- broadcast ads mentioning a candidate -- within 30 days of a primary or 60 days of a general election.
Majority Holding
The Court held 5-4 that the First Amendment prohibits Congress from restricting independent political expenditures by corporations, including nonprofit corporations, for-profit corporations, labor unions, and other associations. The Court overruled Austin v. Michigan Chamber of Commerce and the portion of McConnell v. FEC that upheld restrictions on corporate electioneering communications.
Majority Reasoning
Justice Kennedy's majority opinion held that political speech does not lose its First Amendment protection simply because its source is a corporation. The Court rejected the anti-distortion rationale of Austin, which had allowed restrictions on corporate speech to prevent the corrosive effects of corporate wealth on political discourse. Kennedy held that the identity of the speaker is not a permissible basis for restricting speech and that the government may not suppress political speech based on the speaker's corporate identity. The Court upheld disclosure and disclaimer requirements as constitutional because they provide information to voters without suppressing speech.
The Dissenting Opinion
Justice Stevens wrote a lengthy 90-page dissent, joined by Justices Ginsburg, Breyer, and Sotomayor, arguing that corporations are not natural persons and that the Founders did not intend the First Amendment to protect corporate political spending. Stevens contended that the majority's ruling would unleash a torrent of corporate money into elections and corrupt the democratic process.
Key Quotes
“If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.”
“The Government may not suppress political speech on the basis of the speaker's corporate identity.”
“A democracy cannot function effectively when its constituent members believe laws are being bought and sold. -- Justice Stevens, dissenting”
Impact and Legacy
Citizens United fundamentally transformed American campaign finance by enabling unlimited independent expenditures by corporations and unions. The decision led to the creation of super PACs and a massive increase in outside spending in elections. The case became a lightning rod for debate about the role of money in politics and the nature of corporate personhood, inspiring proposed constitutional amendments and ongoing political controversy.
Exam Relevance
Citizens United is tested in First Amendment questions involving campaign finance, corporate speech, and the distinction between contributions and expenditures. Professors ask students to evaluate whether restrictions on corporate spending are content-based or content-neutral, and whether the anti-corruption rationale justifies speech restrictions. Students should also understand the disclosure requirements the Court upheld.
Study Tips
- Understand the distinction between contributions (which can be limited under Buckley) and independent expenditures (which cannot be limited after Citizens United).
- Know the rationales for restricting corporate speech that the Court rejected: anti-distortion, anti-corruption, and shareholder protection.
- Be prepared to discuss the practical impact: super PACs, dark money, and the role of corporate spending in elections.
- Consider the ongoing debate about whether money is speech and whether corporations have First Amendment rights.
Read the Full Case Analysis
View the complete brief for Citizens United v. Federal Election Commission including full reasoning, doctrine, and study resources.
More Constitutional Law Dissents
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Justice Breyer, joined by Justices Stevens, Souter, and Ginsburg, dissented, arguing that gun-related violence near schools substantially affects interstate commerce through its impact on education, workforce productivity, and the national economy. The dissent contended that the majority's approach was inconsistent with the Court's post-New Deal Commerce Clause precedents and improperly limited Congress's rational basis for finding a commercial nexus.
United States v. Morrison
529 U.S. 598 (2000) (2000)
Justice Souter, joined by Justices Stevens, Ginsburg, and Breyer, dissented, arguing that the majority's economic/noneconomic distinction was unworkable and that Congress's extensive factual findings of substantial effects on interstate commerce should have been given deference. The dissent contended that the majority was returning to the pre-New Deal era of judicial second-guessing of congressional economic judgments.
Gonzales v. Raich
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Justice O'Connor, joined by Chief Justice Rehnquist and Justice Thomas, dissented, arguing that the majority's reasoning effectively returned to a pre-Lopez framework with no meaningful limits on Commerce Clause power. O'Connor contended that if homegrown marijuana for personal medical use is economic activity subject to aggregation, then it is difficult to imagine any activity that Congress cannot regulate.
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Justice Holmes wrote a famous dissent arguing that the Fourteenth Amendment does not enact Herbert Spencer's Social Statics and that the Constitution permits states to regulate economic matters as long as a reasonable person could regard the law as a rational response to a perceived problem. Justice Harlan also dissented, arguing the evidence supported the legislature's judgment that bakery work posed genuine health risks.
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