You’ve probably heard of the Supreme Court case known as Citizens United. This year is the tenth anniversary of the landmark decision. But odds are you don’t know much more than it has something to do with money in politics. As we move into campaign 2020— and lots of money in politics— we sort out what was really behind it and how it’s impacting elections today.
There's something you may not know about the whole court battle started by the conservative nonprofit Citizens United. It was inspired by a liberal documentary.
Michael Boos: Originally back in 2004, Michael Moore produced a documentary film called “Fahrenheit 9/11.”
Sharyl: He's a big liberal activist.
Michael Boos: He is a big liberal activist.
Michael Boos is Vice President and General Counsel of Citizens United.
Michael Moore: Congressmen? We're trying to get members of Congress to get their kids to enlist in the Army and go over to Iraq.
The Michael Moore film criticized President George W. Bush and was released as he ran for reelection.
Movie Preview: From the corridors of power, to the streets of Middle America, comes the true story that will make your temperature rise.
Michael Boos: It was the top selling documentary film of all time. He ran television ads to promote that film which were the most effective political commercials against George W. Bush's reelection in the entire 2004 political campaign. They had pictures of President Bush on the golf course, made it look like it was right after 9/11. He used that very effective politically.
Sharyl: Michael Moore, do you know where his corporate money came from if you're alleging there was corporate money behind him?
Michael Boos: Sure, you're talking Viacom, Sony, the Weinstein brothers. They were behind Michael Moore and Fahrenheit 9/11. I think it was Harvey Weinstein may have personally had been involved with that.
At the time, it was illegal to use corporate money to promote or oppose political candidates during the election season. But campaign finance law exempted documentary makers like Moore. Citizens United decided to copy what Moore had done.
Michael Boos: We at Citizens United decided that we wanted to be movie producers and produce our movies and be covered by the same media exemption.
Sharyl: Did you know you were testing the system, tweaking this after the Michael Moore programming?
Michael Boos: Oh yes, it was deliberate. We also wanted to point out the hypocrisy in the law that certain corporations were completely exempt from the campaign finance structure, very powerful media corporations that had major influence over elections. Yet, an organization such as Citizens United was prohibited from doing the same thing because it wasn't a media entity.
In 2004, Citizens United asked the Federal Election Commission for an exemption to air the political material they produced, like Michael Moore. But the FEC said no because Citizens United had no history of producing documentaries. So the group set out to change that.
Sharyl: Celsius 41.11.
Michael Boos: That was our initial film in response to Fahrenheit 9/11.
Michael Boos: Over the next four years, we produced probably a dozen, dozen and a half documentary films.
Sharyl: You become your own conservative version of Michael Moore.
Michael Boos: That's correct.
By the time Citizens United had a dozen films under its belt, Hillary Clinton was facing off against Barack Obama. And the group had a film it wanted to release.
Sharyl: Tell me about the Hillary Clinton film that your group made.
Michael Boos: Well, the film addressed the Clinton years in the White House and the Clinton scandals. And it addressed Hillary Clinton's fitness from our perspective to be president of the United States. It did not expressly advocate her election or defeat, but it shed light on her public record and was highly critical of her.
But Citizens United still couldn’t get a media exemption because the FEC didn’t have have enough board members to issue an opinion. So in December 2007, the group filed a federal lawsuit. They argued the campaign finance law preventing their film’s release was unconstitutional. While the case worked its way through court, Barack Obama got elected president. Then, in 2009 instead of making a ruling, the Supreme Court threw a curve ball. It ordered both sides to argue a much larger question than about the Hillary Clinton film.
Sharyl: What was your thought when you heard the court was going to make this a much broader decision than you argued?
Michael Boos: We knew at that point that the case was going to be a major precedent.
A special Supreme Court session was held in September 2009. Arguing against Citizens United for the government was Elena Kagan who later became a Supreme Court Justice.
Elena Kagan: Mr. Chief Justice and may it please the court, for over 100 years, Congress has made a judgment that corporations must be subject to special rules when they participate in elections, and this court has never questioned that judgment.
The ruling came in January 2010. The Supreme Court struck down the longstanding ban on corporate money used on candidates in an election period. The Citizens United victory became one of the biggest political money cases of our time.
Meredith McGeehee: With Citizens United, it changed 100 years of jurisprudence about what the role of corporate money is in our elections.
Sharyl: Do you think for better or for worse?
Meredith McGehee: I think for much worse
Meredith McGehee heads up Issue One. It’s a nonprofit group that aims to reduce the role of money in politics. She says the Supreme Court should never have tossed out the original law that restricted corporate spending.
Meredith McGehee: They explicitly overturned that ruling because the majority on the Court basically disagreed with the reasoning that corporate money could distort the political process. So first off, they answered a question that wasn't asked, and really went to this decision that corporations can use treasury funds to influence the outcome of elections.
Ten years later, you might be surprised to hear that both sides agree on one thing: the impact of Citizens United isn’t quite as expected. McGegee says, some corporations that tried funded political races suffered a backlash.
Meredith McGehee: Target was involved in a race and they gave a contribution to a group that was supporting a gubernatorial candidate who was not in favor of gay rights. Then Target had people marching in front of their stores, “Why are you supporting someone who is against gay rights? Who wants to put up with this backlash, particularly if you're a forward-facing, consumer-facing corporation?”
Michael Boos: The other side had said it would result in this massive corporate spending by publicly held multinational corporations which would drown out the voices of everyone else by spending upwards to a trillion dollars an election cycle in order to impose their will on the people. The fact of the matter is that has not happened at all. These publicly held corporations are extremely risk adverse.
Whatever the case, recent polling shows strong opposition to Citizens United, with a majority supporting a constitutional amendment to reverse it.
Sharyl: To those who hear Citizens United and equate that with something very negative in terms of campaign spending, what do you say?
Michael Boos: We've had a profound impact on politics in the country. Before that decision, no one even knew what the Citizens United name was about. Now we're sort of like a brand name in the world of politics. Everyone's heard of Citizens United. Now, some people may have a negative reaction to it, but among our friends, the reaction is mostly positive, and so we're quite happy with that.
This past week, a Democrat-led House subcommittee held a hearing on Citizens United with the goal of figuring out how to reverse it.