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FINAL EXAM
I. Majority reversed Austin arguing against anticorruption,
antidistortion, and shareholder-protection interests.
Word Count: 447

Majority decision penned by J ustice Kennedy
Citizens United, a nonprofit corporation, released a film entitled Hillary:
The Movie (Hillary). It is a documentary which discouraged the election of
then-Senator Hillary Clinton.
Federal law, however, prohibits corporations and unions from using
their general treasury funds to make independent expenditures for
"electioneering communication." 2 U. S. C. 441b. An "electioneering
communication" is defined as "any broadcast, cable, or satellite
communication" that "refers to a clearly identified candidate for Federal
office" and is made within 30 days of a primary or 60 days of a general
election. 434(f)(3)(A).
Limits on electioneering communications were also upheld in
McConnel v. Federal Election Commn, 540 U. S. 93, 203-209 (2003) which
was largely based on Austin v. Michigan Chamber of Commerce, 494 U. S.
652 (1990). Austin held that political speech may be banned based on the
speakers corporate identity.
Here, the Court was asked to reconsider Austin and, in effect,
McConnell.
Citizens United raised five points in its arguments but later on waived
the fifth point. However, the Court found that it cannot resolve the case on
the grounds raised by Citizens United without chilling political speech--
speech that is central to the meaning and purpose of the First Amendment.
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FINAL EXAM
In overturning Austin, the majority argued against three governmental
interests posited by the Government: antidistorition interest, anitcorruption
interest, and shareholder-protection interest.
It argued that if the antidistortion rationale were to be accepted, it
would permit Government to ban political speech simply because the
speaker is an association that has taken on the corporate form. Political
speech is indispensable to decisionmaking in a democracy, and this is no
less true because the speech comes from a corporation rather than an
individual. Austin sought to defend the antidistortion rationale as a means
to prevent corporations from obtaining an "unfair advantage in the political
marketplace" by using "resources amassed in the economic marketplace."
494 U. S., at 659. However, as a necessary consequence of the First
Amendment, political speech cannot be limited based on a speakers
wealth or identity.
The Buckley Court found the anticorruption interest sufficiently
important to allow limits on contributions but did not extend that reasoning
to expenditure limits. Limits on independent expenditures have a chilling
effect extending well beyond the Governments interest in preventing quid
pro quo corruption. Thus, the anticorruption interest is not sufficient to
displace the speech here in question.
In arguing against the shareholder-protection interest, the Court
reasoned that the potential disagreement of a shareholder with the political
views of the corporation could give the Government the authority to restrict
the media corporations political speech. The First Amendment does not
allow that power. Also, it argued that the statute is both underinclusive and
overinclusive.
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FINAL EXAM
II. Supplementary opinion on judicial restraint and stare decisis
Word Count: 209

by Chief J ustice Roberts
Chief Justice Roberts concurred with the majority decision writing a
separate opinion to address the principles of judicial restraint and stare
decisis in relation to its application in the case.
On judicial restraint, the determination of the constitutionality of an Act
of Congress is "the gravest and most delicate duty that this Court is called
upon to perform." The standard of practice is to refrain from addressing
constitutional questions except when necessary. He affirmed that it is only
because the majority rejected Citizens Uniteds statutory claim that it
proceeded to consider the groups constitutional arguments.
On stare decisis, it is preferred because it promotes stability and a
consistent development of legal principles. However, if adherence to a
precedent actually impedes the stable and orderly adjudication of future
cases, its stare decisis effect is also diminished. Thus, Austin was
overruled because first, it was an "aberration" insofar as it departed from
the protections the Court had granted political speech in earlier cases, such
as, Buckley, First Nat. Bank of Boston v. Belloti, 435 U. S. 765 (1978).
Second, the validity of Austins rationale was controversial ever since. And
third, Austin is uniquely destabilizing because it threatened to subvert the
Courts decisions even outside the particular context of corporate express
advocacy.
III. Right to speech of individuals includes the right to speak in
association with other individuals
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Word Count: 113

by J ustice Scalia
Justice Scalia argues against Justice Stevens dissent which
purported to show that the decision is not supported by the original
understanding of the First Amendment. The dissent suggested that
because the Framers didnt like corporations, the dissent concluded that
corporations had no rights of free speech.
Scalia acknowledged that the Framers recognized the right to free
speech of individuals. As a corollary, the individuals right to speak includes
the right to speak in association with other individual persons.
Scalia criticized the dissent and pointed out that the First Amendment
is written in terms of "speech," not speakers. Its text offers no foothold for
excluding any category of speaker: individuals, partnerships, associations
or corporations.
IV. Dissent: Electioneering communication by corporate entitites
may be restricted based on anticorruption and shareholder-protection
interests.
Word Count: 349

by J ustice Stevens
Justice Stevens concurred win the Court's decision to sustain BCRA's
disclosure provisions, but dissented from the principal holding of the
majority opinion.
Steven criticized the majority opinion on two principal points: it
violated the principle of judicial restraint and stare decisis.
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FINAL EXAM
The majority violated the principle of judicial restraint because it
addressed a question not raised by Citizens when it found BCRA 203 to
be facially unconstitutional.
He also argued that the majority violated the principle of stare decisis.
In a long line of cases, the Court had recognized that to deny Congress the
power to safeguard against the improper use of money to influence the
result of an election is to deny to the nation in a vital particular the power of
self-protection. The Buckley Court, for example, recognized the legitimacy
of preventive measures for limiting campaign spending and found the
prevention of corruption to be a reasonable goal of legislation. Yet, the
majority strayed from jurisprudence established over decades.
Steven also argued against the position of the majority relating to
narrower grounds.
First, the majority failed to recognize the possibility of corruption
outside quid pro quo exchanges.
Second, the majority did not place enough emphasis on the
prevention of the "appearance of corruption" in elections. He pointed out
that even Buckley and Bellotti recognized the importance of public
confidence in democracy.
Third, the majority failed to recognize the dangers of the corporate
form recognized in Austin. Steven argued that these entities have perpetual
life, the ability to amass large sums of money, limited liability, no ability to
vote, no morality, no purpose outside of profit-making, and no loyalty. This
makes them dangerous to democratic elections.
Fourth, the majority ignored the rights of shareholders. Because
shareholders invest money in corporations, he argued that the law should
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FINAL EXAM
likewise help to protect shareholders from funding speech that they
oppose.
In sum, Steven would have upheld the constitutionality of BCRA 203
and its restriction against advertising and broadcasting Hillary within 30
days of the primary election on the grounds that the movie was produced
and distributed by a corporate entity.
V. `Dissent in part: BCRA 201 and 311 are also unconstitutional.
Word Count: 121

by J ustice Thomas
Justice Thomas concurred with the majority that BCRA 203 is
incompatible with the First Amendment protection to free speech. However
he dissented as to Part IV of the majority opinion stating that the disclosure,
disclaimer, and reporting requirements in BCRA 201 and 311 are also
unconstitutional.
He argues that Congress may not abridge the "right to anonymous
speech" based on the "simple interest in providing voters with additional
relevant information." Thomas argues that the disclosure requirement
endangers donors to blacklisting, threats and retaliation. The Courts
insistence on upholding 201 and 311 will ultimately prove as misguided.
He posits that intimidation tactics that use disclosed donor information pre-
empt citizens exercise of their First Amendment. In effect, persons are
prevented from speaking.