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Divided on Citizens United

By Katie Vloet

Floyd Abrams—the First Amendment expert who represented The New York Times on the precedent-setting Pentagon Papers case—really does not understand the widespread opposition to the Supreme Court's ruling in Citizens United. Not at all.

In Citizens United v. Federal Election Commission, a majority of Supreme Court justices decided in 2010 that the First Amendment prohibits the government from restricting expenditures by corporations and unions in candidate elections.

The case stemmed from a film critical of Hillary Clinton, made by the conservative nonprofit corporation Citizens United. The group released the documentary during the 2008 primary season, when it was shown at a handful of theaters, as well as on DVD and the Internet. But Citizens United lost a suit to the FEC, which prevented it from showing the movie on cable video-on-demand and from airing advertisements about the documentary on broadcast television.

The documentary is "unfair, unjust, and, given my own political views, sometimes unhinged. But is it unprotected speech?…I say to myself, this is quintessential political speech," Abrams, a partner at Cahill Gordon & Reindel, said March 5 during an event presented at Michigan Law by the Michigan Election Law Project, the Federalist Society, the American Constitution Society, the American Civil Liberties Union, and the Frank Murphy Society.

"The majority opinion was rooted entirely in the First Amendment," added Abrams, who represented Sen. Mitch McConnell as amicus curiae in Citizens United.

But Richard Hasen, who writes the Election Law Blog and is a professor at the University of California, Irvine School of Law, said at the event that the Court had decided the case too broadly. Though he, too, thinks Citizens United rightfully won the case, he believes that the Court should have decided just to strike down a ban on corporate spending without including this line in its majority opinion:

"We now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption."

That sentence, Hasen argues, has given rise to the so-called Super PACs that are pouring big money into the current presidential campaign.

He also pointed out that other recent Supreme Court decisions clash with the Citizens United ruling. For instance, in Bluman v. FEC, the Court affirmed a lower court ruling that upheld a federal law that prevents foreign individuals from making political contributions to U.S. campaigns. He agrees with the Bluman decision, but he argued that the logic used in Citizens United should have led the Court to eliminate the foreign spending ban as well.

Read about Abrams' views on Citizens United.
Read about Hasen's views.


Read more feature stories.