The Bipartisan Campaign Reform Act of 2003, also known as “BCRA” or “McCain-Feingold”, put restrictions on unions and corporations and the independent expenditures they could make if the funds came from the general treasury:
- No “electioneering communication,” defined as “any broadcast, cable, or satellite communication” that “refers to a clearly identified candidate for Federal office” that is “publicly distributed” within 30 days of a primary election
- No speech that expressly advocates for a candidate’s election or defeat
If a union or corporation wanted to do this, it had to set up a separate political action committee (PAC), that is typically funded by individuals within the union or corporation.
An “independent expenditure” is money spent by groups or individuals that are not controlled by a candidate (such as his or her campaign committee).
Citizens United is a nonprofit corporation created under Section 501(c)(4) of the Internal Revenue Code. Citizens United wanted to run television commercials to advertise their documentary that negatively portrayed then-candidate for president Senator Hillary Clinton within 30 days of a primary. The group asked for a court order that said it would be able to run the commercials and stop the Federal Election Commission (FEC) from finding it in violation of BCRA. After many decisions and appeals, the case made it to the United States Supreme Court.
Supreme Court Opinion
The Supreme Court’s opinion said several things, but the key takeaways were that a union or corporation:
- Can make independent expenditures from its general treasury without creating a PAC. The court held that the BCRA section that banned this political speech violated the First Amendment.
- Must still publicly disclose its identity if it sponsored an advertisement.
- Cannot directly donate to a candidate or candidate’s committee.
The Supreme Court opinion expanded the original question after hearing oral arguments for a second time. This was necessary because in the first oral arguments session, the attorney for the FEC stated that an earlier case (Austin v. Michigan Chamber of Commerce) meant that the government had the right to ban a book that had even a single sentence that advocated for or against a candidate if a union or corporation published or distributed it. The Court determined that there was a greater Free Speech issue in play, leading to this ruling.
What does the Citizens United decision mean for labor unions?
Prior to Citizens United, the funds that unions collected from union dues could not go to political spending that expressly advocated for the election or defeat of a candidate. That funding could, however, still go to other “political activities.” These include informational and educational materials that are distributed to members.
Under Citizens United, unions can take member dues and spend the money on materials in support or in opposition to a candidate for office. This is problematic because union members are not asked for permission before this money is spent, and it is often difficult to ask for a refund.
Didn’t Citizens United create “super PACs”?
No. The Court in Citizens United found that unions and corporations could spend money from their general treasury to advocate for or against a candidate and that banning that activity was unconstitutional under the First Amendment’s Free Speech Clause. A later case decided by the D.C. Circuit Court of Appeals, SpeechNow.org v. Federal Election Commission, allowed unions, corporations, individuals, and associations to make unlimited contributions to a group that only spends its funds on independent expenditures. These groups are called super PACs.
Is the identity of a group that spends money as allowed under Citizens United a secret?
No. Both unions and corporations must disclose that they are behind any advertisement or other electioneering material. Unions must specifically disclose where their money goes. You can find that here.