Reference no: EM133363038

Assignment:

"Political speech does not lose First Amendment protection 'simply because its source is a corporation.'" Justice Anthony Kennedy, majority opinion in Citizens United.

"Corporations have no consciences, no beliefs, no feelings, no thoughts, no desires ... They are not themselves members of 'We the People' by whom and for whom our Constitution was established." Justice John Paul Stevens, dissenting opinion in Citizens United.

It costs a lot of money to compete in an election in the United States. According to the Federal Election Commission, during the 2019 - 2020 election cycle, political candidates and political action committees collected over $21.3 BILLION and distributed over $19.7 BILLION. Candidates for President collected $4.1 billion and distributed $3.9 billion.

Congressional candidates collected $4 billion and distributed $3.8 while Super PACs (political action committees) collected $13.2 billion and spent $12.9 billion. As you can see, while there are limits as to how much individuals can donate to candidates, there are no limits as to how much donors can contribute to Super PACs (political action committees). With limitations on contributions, Super PACs can raise more money and spend it on electioneering so long as the Super PACs do not coordinate with political campaigns. Consequently, those who possess money to spend on elections have many outlets to do so. Further, Super PACs may not have to disclose their donors as they can Super PACs can receive money from "dark money" groups that do not disclose their donors. "Dark Money" refers to money spent to influence voters though the source of the money remains unknown.

The rise of Super PACs is one consequence of the Supreme Court's decision in Citizens United v. FEC. In January of 2008, the non-profit organization Citizens United released a documentary film Hillary: The Movie, which concerned then New York State Senator, Hillary Clinton, who was seeking the Democratic Party's nomination for President. The film features interviews with many political commenters who were critical of Senator Clinton, arguing that Senator Clinton is unfit for office and the United States, and the world would be a dangerous place if she were elected to office - (and, yes, this is the standard line the opposition party takes in an election.) Citizens United released the movie in theaters, on DVDs (remember those?), and wanted to release it for free on video-on-demand services. It planned on running 30 and 60 second ads to let viewers know that Hillary: The Movie would be available on-demand within 30 days of the democratic primary.

However, because the group responsible for Hillary: The Movie was a non-profit corporation, Citizen United would violate the Bipartisan Campaign Reform Act of 2002 (BCRA) for its "electioneering communication" by a corporation. The CBRA prohibited corporations from using their general funds to "make direct contributions to candidates or independent expenditures that expressly advocate the election or defeat of a candidate, through any form of media, in connection with certain qualified federal elections." Since Hillary: The Movie was published to be an attack on Senator Clinton, if it were to appear on video-on-demand 30 days before the Democratic primary, Citizens United would be criminally liable for violating CBRA.

Citizens United is a landmark First Amendment case for the way in which in transforms who possesses a voice in our political system. The majority opinion premises its decision on the importance of free speech in a democracy. Justice Kennedy writes that, "Because speech is an essential mechanism of democracy-it is the means to hold officials accountable to the people-political speech must prevail against laws that would suppress it by design or inadvertence." In the name of democracy, the Court rules that corporations have the same free speech rights as individuals even regarding electioneering communications. However, hanging in the balance of this decision concerns the ability of donors, especially wealthy donors, to influence elections and undermine a conception of equality that's necessary to sustain democracy.

To do this discussion post on Citizens United, please answer the following questions.

1) What reasons does the Court provide to suggest that corporations possess the same free speech rights as natural humans? Use the opinions by Justice Kennedy and Justice Scalia to support your answer.

2) What reasons does Justice Stevens provide that opposes the notion that corporations possess the same free speech rights as natural humans?

3) Should free speech rights be determined by the nature or identity of the speaker? If you argue that speech rights shouldn't be determined by the nature of the speaker, how do you determine who in a corporation gets to speak? What happens if there is disagreement in the corporation - are those individuals coerced into supporting the speech of the corporation?

4) One of the consequences of Citizens United concerns the rise of Super PACs (political action committees). According to the Federal Election Committee, Super PACs may solicit and accept unlimited contributions from individuals, corporations, labor unions, and other political committees. While Citizens United suggests that there will be transparency in elections as Super PACs will need to disclose donors, political groups have weakened transparency through "dark money" groups, or, political groups that donate money to Super PACs but do not disclose who donated to the dark money group.

In August of 2022, the Marble Freedom Trust, led by former Federalist Society executive Leonard Leo, received a $1.6 billion dark-money donation to spend on political projects. Though millions of citizens participate in the democratic process by contributing money to candidates and voting for candidates, it is not clear if those citizens may match that $1.6 billion contribution. With that in mind, does Super PACs and dark money contributions threaten democracy, making democracy the will of the few rather than the many, or is the size of the donation irrelevant since money may be considered speech but not all speech persuades voters?