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Legislative Options After Citizens United v. FEC: Constitutional and Legal Issues


In a 5-to-4 ruling, the Supreme Court in Citizens United v. Federal Election Commission (FEC)1 lifted certain restrictions on corporate independent expenditures. The decision invalidated two provisions of the Federal Election Campaign Act (FECA), codified at 2 U.S.C. § 441b. It struck down the long-standing prohibition on corporations using their general treasury funds to make independent expenditures,2 and Section 203 of the Bipartisan Campaign Reform Act of 2002 (BCRA), which amended FECA, prohibiting corporations from using their general treasury funds for “electioneering communications.”3 The Court determined that these prohibitions constitute a “ban on speech” in violation of the First Amendment.4 In so doing, the Court overruled its earlier holdings in Austin v. Michigan Chamber of Commerce,5 finding that the allegedly distorting effect of corporate expenditures provided no basis for allowing the government to limit corporate independent expenditures. It also overruled the portion of its decision in McConnell v. FEC,6 upholding the facial validity of Section 203 of BCRA, finding that the McConnell Court relied on Austin. 7

The Court, however, upheld the disclaimer and disclosure requirements in Sections 201 and 311 of BCRA as applied to a movie regarding a presidential candidate that was produced by Citizens United, a tax-exempt corporation, and the broadcast advertisements it planned to run promoting the movie.8 According to the Court, while they may burden the ability to speak, disclaimer and disclosure requirements “impose no ceiling on campaign-related activities.” 9

It does not appear that the Court’s ruling in Citizens United affects the validity of Title I of BCRA,10 which generally bans the raising of soft, unregulated money by national parties and federal candidates or officials, and restricts soft money spending by state parties for “federal election activities.” For a legal analysis of the Supreme Court’s ruling, see CRS Report R41045, The Constitutionality of Regulating Corporate Expenditures: A Brief Analysis of the Supreme Court Ruling in Citizens United v. FEC, by L. Paige Whitaker.

1 No. 08-205, slip op. (U.S. Jan. 21, 2010). See id. at 20-51. See id. 4 Id. at 22. 494 U.S. 652 (1990). 540 U.S. 93 (2003). 2 3 5 6

7 See Citizens United, slip op. at 50. For further discussion of McConnell v. FEC and Austin v. Michigan Chamber of Commerce, see CRS Report RL30669, The Constitutionality of Campaign Finance Regulation: Buckley v. Valeo and Its Supreme Court Progeny, by L. Paige Whitaker.

8 See slip op. at 50-57. 9 Id. (quoting Buckley v. Valeo, 424 U.S. 1, 64 (1976)). 2 U.S.C. § 441i(a). 10

Congressional Research Service


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