Expert answer:Stakeholder Identification Assignment Case Citizen
Solved by verified expert:First, you need to read the case (Citizens United v. Federal Election Commission) in the attached file and watch two videos in the link blow.Video 1: Video 2: And then,
you need to finish the assignment according to the following instruction:”The case study presents the
history of events leading up to the Supreme Court of the United States’
decision in Citizens United v. Federal Election Commission, a brief summary of
the public’s reaction to the decision, and some thoughts to consider about the
effect of this decision. The assignment requires you to identify stakeholders
who will be affected by the court’s decision in this case and the impacts the
stakeholders will have in the aftermath of the court’s decision. In your assignment, you will be
asked to identify all relevant stakeholders and determine how they could be
impacted by the Supreme Court’s decision in Citizens United v. Federal Election
Commission. You should put yourselves in each stakeholder’s position—Why do
they care about the outcome of the decision? How will they be affected? What
outcome would they prefer? What are their arguments in support of their
preferred outcome? You will want to consider the power, urgency, and legitimacy
that each stakeholder presents. To summarize, identify all
stakeholders affected by the court’s decision and determine the impact that the
court’s decision has on the stakeholder or the impact that the stakeholder
could have in the aftermath of the court’s decision. DO NOT answer the questions at the end of the
case. “Requirements:
Please finish a 4-page (not
including the references page), single
spaced paper follow the instruction above. APA format is required.Please deliver your work within two days, Thank You!
citizens_united_v._federal_election_commission.pdf
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304 Chapter 9 Business in Politics
Amendment. Restraints on corporations cannot be absolute. In practice, they are
very problematic and limited in effect. But while there is a strong public perception that corporate money is undermining fairness in government, specific evidence of deep corruption, as opposed to periodic and healthy exposures of
lawbreaking, is not forthcoming. American politics today is cleaner than the politics of most other nations and cleaner than in past eras. The challenge is to balance
the First Amendment right of corporations to free political expression against the
societal interest of maintaining corruption-free elections. At present, our society
maintains a rough, if not perfect, balance.
Citizens United v. Federal Election Commission
For more than 100 years Congress and the Supreme
Court carefully fashioned laws to check corporate
power in elections. At first, the restraints were loose,
but over the years they tightened. There were debates and a few dissents, but the nation never hesitated in its direction—until 2010 when five justices of
the Supreme Court decided to reverse course. This
is the story of their decision. It begins in the nation’s
youth.
necessary to secure the fair and honest conduct of
an election.”1
A second challenge to “fair and honest conduct”
in elections arose when industrial growth created
pools of great wealth. By the 1870s railroads were
already spending heavily for political favors. In 1873
Jay Gould, owner of the Erie Railroad, explained his
businesslike approach to elections.
It was the custom when men received nominations
to come to me for contributions, and I made them
and considered them good paying dividends for the
company; in a republican district I was a strong republican, in a democratic district I was democratic,
and in doubtful districts I was doubtful; in politics
I was an Erie railroad man every time.2
CONGRESS PROTECTS
ELECTIONS
In the American philosophy of self-government,
free elections are an indispensable bulwark against
tyranny. The founders believed all citizens should
have the right to vote, that their votes should count
equally, and that a majority should prevail. The
rules in the Constitution bound the young nation
to these ideals. The Founding Fathers also believed
that if citizens were to vote wisely, they needed
full, open debate on candidates and issues. The
central purpose of the First Amendment, which
directs that “Congress shall make no law . . .
abridging the freedom of speech,” is to protect this
debate.
In the early years of the republic the practice
largely accorded with the ideal. The first challenge
came right after the Civil War when violence and
intimidation kept freed slaves from the polls. Congress passed two Enforcement Acts in 1870 and
1871 to protect the freed slaves’ right to vote and
these were the first election laws. The Supreme
Court eventually upheld “the [constitutional]
power of [C]ongress to make such provisions as are
As time passed, the amounts of business money in
elections grew. So did public perception of corruption, real and imagined. Standard Oil is reported to
have given a check for $250,000 (about $6.4 million in
current dollars) to reelect McKinley in 1900. In 1905
an investigation of New York insurance companies
inflamed the nation. It revealed they had spent
hundreds of thousands of dollars electing state and
national politicians. A prominent Republican boss,
when asked if these contributions bought favors, replied: “That’s naturally what would be involved.”3
The investigation also revealed a $50,000 ($1.2 million in today’s dollars) donation from New York Life
1
The case is ex parte Coy, 127 U.S. 731 (1888), at 752.
Quoted in Maury Klein, The Life and Legend of Jay Gould
(Baltimore: Johns Hopkins, 1986), p. 97.
3 Thomas Platt, quoted in Thomas Fleming, “The Long, Stormy
Marriage of Money and Politics,” American Heritage,
November 1998, p. 45.
2
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Chapter 9 Business in Politics 305
to President Theodore Roosevelt in 1904. Roosevelt,
who had said he would reject money from the trusts
and fund his campaign with contributions from average citizens, was so embarrassed that he called on
Congress to forbid “all contributions by corporations
to any political committee or for any political purpose.”4 In 1907 it did so with the Tillman Act, which
prohibited banks, corporations, and insurance companies from contributing money to presidential and
congressional candidates.
ELECTION LAW EXPANDS,
TIGHTENS RESTRAINTS ON
CORPORATIONS
The Tillman Act was the first effort by Congress to
protect the institution of free elections by restricting
the entry of corporate wealth. Although the Tillman
Act applied only to federal elections—that is, elections for president, vice president, senator, and
representative—about half the states eventually
passed similar laws. One was Montana, where copper interests had corrupted elections for sheriffs,
judges, county commissioners, and state legislators.
Its citizens, weary of vote buying, passed a 1912
initiative making it illegal for a corporation to “pay
or contribute in order to aid, promote or prevent the
nomination or election of any person . . . political
party or organization.”5
The Tillman Act and its progeny in the states turned
out to be more loophole than law. Corruption continued. In 1925, after the Teapot Dome scandal, Congress
passed the Federal Corrupt Practices Act to strengthen
restrictions on campaign contributions and spending.
In 1939 it passed the Hatch Act banning contributions
from federal employees so that presidents could not
make campaign giving a condition of holding a job. In
1947 the Taft-Hartley Act extended the ban on contributions to labor unions and prohibited independent
expenditures by banks, corporations, and unions for
messages that asked for the election or defeat of candidates. Congress intended to prevent these entities from
4
Quoted in Nancy Lammers, ed., Dollar Politics, 3rd ed.
(Washington, DC: Congressional Quarterly, 1982), p. 41.
5 Cited in testimony of Montana Attorney General Steve
Bullock, Hearing on Corporate America v. the Voter: Examining
the Supreme Court’s Decision to Allow Unlimited Corporate
Spending, U.S. Senate, Committee on Rules and Administration,
111th Congress, 2nd Session, February 2, 2010, p. 2.
going around the Tillman Act’s contribution ban and
spending money from their treasuries to elect or defeat
candidates on their own. President Truman vetoed the
law, expressing concern that banning independent
spending was “a dangerous intrusion on free speech,
unwarranted by any demonstration of need.”6 Congress overrode the veto.
When the United Auto Workers tested the TaftHartley law by spending union dues on television
ads in the 1954 elections, the Supreme Court upheld
the independent expenditure ban in a close 5–4 decision. This drew a spirited dissent from Justice
William O. Douglas.
Until today political speech has never been considered a crime . . . [I]t costs money to communicate
an idea to a large audience . . . Yet [the Taft-Hartley
law] . . . makes criminal any “expenditure” by a
union for the purpose of expressing its views on the
issues of an election and the candidates. Some may
think that one group or another should not express
its views in an election because it is too powerful . . .
But [this does not justify] withholding First
Amendment rights from any group—labor or
corporate.7
Although corporate spending on campaigns continued to flow through loopholes and grow, for the
next quarter century Congress took no action. It acted
again in 1971 by passing the Federal Election
Campaign Act (FECA) to compel more disclosure of
contributions and expenditures. Then, following the
Watergate scandal, it amended and strengthened this
law in 1974 to close longtime loopholes for corporate
money. It set contributions limits of $1,000 per election
per candidate and $25,000 a year total giving for individuals and limited their independent expenditures to
only $1,000 a year. Wealthy executives could no longer
contribute at will. It also set strict contribution limits
for political committees. It expanded the Tillman Act’s
ban on corporate contributions to include giving anything of value. Corporations could no longer abet
campaigns with gifts of staff and services. It continued
the Taft-Hartley Act’s ban on independent expenditures for election advocacy by corporations (see the
accompanying box for the wording).
6
Cited in Allison R. Hayward, “Revisiting the Fable of Reform,”
Harvard Journal on Litigation 45 (2008), p. 459.
7 United States v. International Union United Automobile,
Aircraft and Agricultural Implement Workers of America, 77
S. Ct. 529, at 543 and 595.
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306 Chapter 9 Business in Politics
With passage of the Federal Election Campaign Act the ban on independent expenditures by corporations
from the Taft-Hartley Act was codified in 2 U.S.C. §441b. It read, in part:
§441b Contributions or expenditures by national banks, corporations, or labor organizations
(a) It is unlawful for any national bank, or any corporation organized by authority of any law of
Congress, to make a contribution or expenditure in connection with any election to any political
office . . .
(2) For purposes of this section . . . “contribution or expenditure” . . . includes any direct or indirect
payment, distribution, loan, advance, deposit, or gift of money, or any services, or anything of
value . . . to any candidate, campaign committee, or political party . . . but shall not include
(A) communications by a corporation to its stockholders and executive[s] . . .
(B) nonpartisan registration and get-out-the-vote campaigns by a corporation aimed at its
stockholders and executive[s] . . .
(C) . . . contributions to a separate segregated fund* to be utilized for political purposes by a
corporation . . .
* A “separate, segregated fund” is a political action committee, which must by law keep its funds set apart from general treasury funds.
But it opened a loophole. It permitted corporations to set up political action committees (PACs).
These PACs could not be funded by corporate treasuries, only by individual contributions from employees up to a limit of $5,000 per employee per two-year
election cycle. Using this money, PACs could engage
in advocacy, for example, by running television ads
for or against candidates. With PACs, corporations
had a political voice, one muted by the limited amounts
employees would contribute, but a voice nonetheless. With this provision Congress tried to narrow its
remedy for the corruption potential in corporate
spending, taking away most, but not all, of the corporation’s potential voice, abridging its speech only
as much as necessary out of deference to the First
Amendment.
The FECA also created a new agency to enforce
election laws. The Federal Election Commission
(FEC) is an independent regulatory agency with six
commissioners, no more than three of whom can be
from one political party. Candidates and committees must register with it and file periodic finance
reports. It writes rules, issues guidance, files reports from candidates and donors, and keeps
records.
And to underline its resolve, Congress added
criminal penalties. Now “knowingly and willfully”
violating the law by an aggregate amount more than
$25,000 in a year was a felony subject to imprisonment of up to five years and a fine or both. Lesser
violations were misdemeanors with sentences up to
one year and fines up to triple the amount of illegal
contributions or expenditures.
Election law now was more complex. Essentially,
the government had created a censorship regime
that, in carefully calculated ways, would protect elections by prohibiting speech here, reducing it there,
and allowing it elsewhere.
TESTS OF CONSTITUTIONALITY
Forthwith, opponents disputed the constitutionality
of the new contribution and expenditure limits. In
1976 the Supreme Court said campaign contributions
and spending were speech protected by the First
Amendment. But it held that preventing “the reality
or appearance of improper influence stemming from
the dependence of candidates on large campaign contributions” was so important that it justified abridging some speech rights.8 It upheld the FECA limits on
individual contributions. The prohibitions on corporate contributions and independent expenditures remained in place. However, the Court struck down
limits on independent expenditures by individuals,
8
Buckley v. Valeo, 96 S. Ct. 12 (1976), at 58. Lead plaintiff
James L. Buckley was a Republican senator from New York.
Francis R. Valeo was secretary of the U. S. Senate, whose
duties included administering aspects of the campaign
finance laws.
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Chapter 9 Business in Politics 307
holding that because they were not prearranged or
coordinated with a campaign they did not present the
same danger of real or apparent corruption. The case
was Buckley v. Valeo.
After Buckley, regulation of elections under the
FECA expanded. Congress twice more amended the
law. The Federal Election Commission wrote rules
and issued hundreds of advisory opinions about its
application, supporting some methods of advocacy,
denying others, creating tests, and parsing reporting
requirements. Its voluminous output added to the
complexity already present in election law. Candidates and corporations needed to consult attorneys
before speaking out. Yet the regulatory scheme failed
to slow the rise of money in elections, eliminate episodic corruption scandals, subdue corporate influence, or restore public confidence in government.
In cases coming before it, the Supreme Court
generally upheld the government’s right to limit direct contributions and independent election spending by corporations (and unions). The Michigan
Chamber of Commerce brought one such case. It
wanted to support a state candidate with an ad in a
local newspaper. This would be an independent expenditure made apart from any control or direction
by the candidate’s campaign. The Chamber, a nonprofit corporation funded by dues from its corporate members, wanted to pay for the ad with general
treasury funds.
However, like the federal government, Michigan’s
election law prohibited corporations from using their
own funds to advocate election or defeat of a candidate. The Chamber challenged the constitutionality
of the Michigan law as a violation of its First Amendment speech rights. This was the first time the constitutionality of the government ban on independent
expenditure by corporations had come before the Supreme Court. In Austin v. Michigan Chamber of Commerce the Court upheld the Michigan law. In doing so
it invented a new justification for limiting corporate
speech. The year was 1990.
When the Court inspects speech restrictions of
any kind it submits them to strict scrutiny, a term
with specific meaning. To survive strict scrutiny, a
speech law must pass two tests. First, it must serve a
compelling government interest, not simply respond
to a passing need or solve a minor problem, but address a matter of highest importance. In Austin the
majority found that compelling interest in the “distorting effects” of corporate wealth that reflects only
the economic decisions of consumers and investors.
It was a novel argument that implied it was the government’s business to referee the relative strength of
ideas in political debate.
Michigan’s regulation aims at . . . the corrosive and
distorting effects of immense aggregations of wealth
that are accumulated with the help of the corporate
form and that have little or no correlation to the
public’s support for the corporation’s political ideals
. . . Corporate wealth can unfairly influence elections when it is deployed in the form of independent expenditures, just as it can when it assumes the
guise of political contributions.9
Second, a speech regulation must be narrowly tailored, that is, it must restrict only as much expression
as is necessary to achieve its objective. By analogy, a
swatter is the narrowly tailored solution for a fly
on the wall, not fumigation of the building. The
Michigan law passed this part of the test because it
was not an absolute ban on corporate speech. Even if
corporations could not spend money from their
treasuries, they could still make political expenditures through PACs.
CLOSING THE SOFT
MONEY LOOPHOLE
The Austin decision confirmed that the ban on independent expenditures by corporations was constitutional. However, corporations found their way
around this ban, exploiting a loophole in the FECA
and several advisory opinions of the Federal Election
Commission that, together, allowed them to give unlimited amounts of soft money to national party committees. Soft money is simply money raised outside
the rules of the FECA. Not falling under the law, it
could come from corporate treasuries. Corporations
began writing large checks to national party committees, which gave the money to state party committees
that used it to broadcast ads for and against candidates. These ads were flimsily disguised as “issue
ads.” They purported to address broad issues but in
fact promoted specific candidates. Instead of saying
“Vote for Smith” at the end, they would say something such as, “Call Smith, tell her what you think.”
As corporate funding for “issue ads” skyrocketed,
their pretense wore thin with the American public.
9
Austin v. Michigan Chamber of Commerce, 110 S. Ct. 1391
(1990), at 1411.
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308 Chapter 9 Business in Politics
When the Bipartisan Campaign Reform Act (the McCain-Feingold Act) was passed §203 on “electioneering
communications” was codified as 2 U.S.C. §434. It read, in part:
§434 (3) Electioneering communication. For purposes of this subsection–
(A) In general.
(i) The term ‘electioneering communication’ means any broadcast, cable, or satellite communication which—
(I) refers to a clearly identified candidate for Federal office:
(aa) 60 days before a general, special, or runoff election for the office sought by the
candidate; or
(bb) 30 days before a primary or preferential election, or a convention or caucus of a
political party that has authority to nominate a candidate . . .
(III) in the case of a communication which refers to a candidate for office other than
President or Vice President, is targeted to the relevant electorate.
(C) . . . a communication which refers to a clearly identified candidate for Federal office is
‘targeted to the relevant electorate’ if [it] can be received by 50,000 or more persons—
(i) in the district the [House] candidate seeks to represent . . .
(ii) in the State the [Senate] candidate seeks to represent . . .
Congress then passed a new law to protect elections
from the dangers of corruption posed by soft money.
It was the Bipartisan Campaign Reform Act of 2002,
better known as the McCain-Feingold Act after its
sponsors Sen. John R. McCain (R-Arizona) and Sen.
Russ Feingold (D-Wisconsin). The new law amended
the FECA, banning soft money contributions to reduce the influence of corporations. It raised contribution limits for individuals to give them more influence
in elections. And it attempted to reduce the influence
of “issue ads” funded with corporation’s indepe …
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