July 12, 2017

Correcting the Record on the First Amendment

  • Attacks on judicial nominees’ First Amendment records often include misstatements of law and mischaracterizations of facts in the Citizens United case.
  • The Citizens United decision had nothing to do with political spending by individuals.
  • Citizens United was consistent with past Supreme Court precedent and did not allow foreign money in U.S. elections.

Judges awaiting confirmation are often attacked for their views on the First Amendment, whether on religious liberty or political speech. Attacks in this area just as frequently include misstatements of law, conflations of separate concepts, and mischaracterizations of facts. One frequent area of misunderstanding involves criticism on how nominees have applied Justice Anthony Kennedy’s 2010 opinion in the Citizens United case and the meaning and impact of that case.


The case involved Citizens United, a nonprofit organization funded by both individuals and some corporations, which released a documentary in 2008 critical of Hillary Clinton, who was running for president at the time. A cable company offered to run the documentary as a free video-on-demand selection in exchange for a payment by the nonprofit. At the time, federal law prohibited nonprofit organizations that accepted corporate donations from spending their money to advocate publicly for the election or defeat of a federal candidate. Before the documentary aired, Citizens United pre-emptively challenged the prohibition as a violation of the First Amendment, and the Supreme Court agreed.

The Constitution Has Always Protected Individuals’ Rights to Make Unlimited independent Expenditures

Citizens United did not affect political spending by individuals, despite how it is sometimes characterized. Limits on independent expenditures by individuals were deemed unconstitutional by the Supreme Court in Buckley v. Valeo, more than 30 years before Citizens United was decided. 

The fundamental building block of the federal campaign finance system is the “expenditure.”  Federal law defines an “expenditure” as “any purchase, payment, distribution, loan, advance, deposit, or gift of money or anything of value, made by any person for the purpose of influencing any election for Federal office.”  

A “contribution” is a type of “expenditure.” In the common understanding, a contribution is something of value given to a candidate or political committee. An expenditure coordinated with a candidate is considered a contribution. By contrast, an “independent expenditure” is an expenditure “that is not made in concert or cooperation with or at the request or suggestion of such candidate, the candidate's authorized political committee, or their agents, or a political party committee or its agents.”


In 1974, Congress enacted amendments to the Federal Election Campaign Act to impose monetary caps on political spending, including contributions and independent expenditures by individuals. After these limits were challenged, the Buckley v. Valeo court upheld the limits on contributions but struck down the expenditure restrictions. The court decided that “expenditure ceilings impose significantly more severe restrictions on protected freedoms of political expression and association than do its limitations on financial contributions.” 

Citizens United Was Consistent With Supreme Court Precedent

In Citizens United, the Supreme Court extended its earlier reasoning to apply to all corporations, overturning a law that prohibited most corporations from making independent expenditures. Before Citizens United, only nonprofit organizations that did not accept corporate funds could make independent expenditures. Citizens United established the First Amendment right of all corporations to make independent expenditures.

As Justice Kennedy’s opinion noted, Supreme Court precedent “recognized that First Amendment protection extends to corporations” and that such “protection has been extended by explicit holdings to the context of political speech.” The court also pointed to a decision in 1978 that “reaffirmed the First Amendment principle that the Government cannot restrict political speech based on the speaker's corporate identity.”

The Citizens United decision did overturn one outlier precedent, a 1990 case in which the Supreme Court allowed a state to prohibit a nonprofit organization from making independent expenditures in state elections. In a dissent to the 1990 majority opinion, Justice Kennedy pointed out that the court was upholding “a direct restriction on the independent expenditure of funds for political speech for the first time in its history.” In overturning the precedent, the court reaffirmed the longstanding constitutional principle that encroachments on the First Amendment’s broad protection of political speech should be viewed with suspicion.

Citizens United Does Not Allow Foreign Money in U.S. Elections

The Citizens United decision did nothing to change the strict ban on foreign nationals making any contributions or expenditures in any U.S. election. The prohibition is quite broad, banning any foreign national, including individuals, organizations, or other entities, from “directly or indirectly” making any “contribution or donation of money or other thing of value ... in connection with a Federal, State, or local election.”

This ban was most recently upheld in 2012, two years after Citizens United, when the Supreme Court summarily affirmed a lower court’s decision holding the prohibition to be constitutional.

Citizens United Did Not Create New Forms of Undisclosed Spending

Individual and corporations making independent expenditures in federal elections must disclose their spending to the Federal Election Commission. The public can search these reports on the FEC’s website. Additionally, the independent expenditures must themselves contain disclaimers that “clearly state the full name and permanent street address, telephone number, or World Wide Web address of the person who paid for the communication.”

A D.C. Circuit case following Citizens United allowed the creation of what are known as “super PACs.” Super PACS are political committees that may accept unlimited funds from individuals and corporations but may only make independent expenditures and may not make contributions to candidates. They must register with the FEC and disclose their contributors and expenditures in periodic reports.

Critics often refer to spending by groups that do not disclose their donors as “dark money.” Often, these groups are entities that are treated as 501(c)(4) social-welfare organizations by the IRS. Under IRS rules predating Citizens United, such organizations were permitted to engage in political campaign activity as long as it does “not constitute the organization's primary activity.” These groups must report their donors to the IRS but may redact the donors’ names when the reports are released publicly. Before Citizens United, only nonprofit organizations that did not accept corporate funds could make independent expenditures, but individuals could still give unlimited sums to these organizations.

Citizens United Did Not Affect Issue Advocacy

Discussions about Citizens United often blur the distinction between issue advocacy and electioneering. In general, payments that are “expenditures,” i.e., those that are for the purpose of influencing a federal election, are regulated, while payments that are not expenditures are usually not regulated. Issue advocacy entails entities and individuals communicating their positions on policy issues, such as a Supreme Court nomination or health care bill, without expressly advocating for the election or defeat of a candidate.

Although much litigation has ensued over what sort of communications constitute issue advocacy and what constitute electioneering, courts long before Citizens United have recognized that communications on political issues deserve particular constitutional protection. Citizens United did nothing to change this recognition.

Issue Tag: Judiciary