The Supreme Court decided Citizens United v. Federal Election Commission on January 21, 2010, by a 5–4 vote. The five justices who voted for Citizens United were Anthony Kennedy, John Roberts, Antonin Scalia, Samuel Alito, and Clarence Thomas. The four dissenters were John Paul Stevens, Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor.
The Five Justices in the Majority
Justice Anthony Kennedy wrote the majority opinion. Chief Justice John Roberts and Justices Antonin Scalia and Samuel Alito joined Kennedy’s opinion in full. Justice Clarence Thomas joined most of it but broke away on one point: he would have struck down the federal disclosure and disclaimer requirements as well.1Justia Law. Citizens United v. FEC, 558 US 310
Kennedy’s reasoning was that political speech is protected by the First Amendment, and that protection does not disappear when the speaker is a corporation or union rather than an individual. The five-justice majority struck down what was then codified at 2 U.S.C. § 441b (now 52 U.S.C. § 30118), which had prohibited corporations and unions from using treasury funds for independent political ads near a federal election.2Supreme Court of the United States. Citizens United v. Federal Election Commission In reaching that result, the majority overruled Austin v. Michigan Chamber of Commerce (1990) and the portion of McConnell v. Federal Election Commission (2003) that had upheld the electioneering communication ban.1Justia Law. Citizens United v. FEC, 558 US 310
How the Majority Split on Concurrences
All five justices agreed on the outcome, but three of them wrote separately to explain their reasoning.
Chief Justice Roberts, joined by Justice Alito, wrote a concurrence defending the decision to overrule Austin. Roberts argued that stare decisis, the principle that courts should respect prior rulings, did not require the Court to preserve a decision it believed was wrongly decided.1Justia Law. Citizens United v. FEC, 558 US 310
Justice Scalia, joined by Alito and in part by Thomas, wrote a concurrence grounded in the original meaning of the First Amendment. Scalia argued that the founding generation understood free speech to include the right to speak in association with others, including through the corporate form, and saw no historical basis for treating corporate speech as less protected than individual speech.3Legal Information Institute. Citizens United v. Federal Election Commission – Scalia Concurrence
Justice Thomas wrote separately to concur in the judgment but dissent from the portion of the opinion upholding disclosure and disclaimer requirements. Thomas argued that mandatory disclosure of donors could expose them to harassment and retaliation, and he pointed to real-world examples of backlash against individuals whose political contributions had become public.4Legal Information Institute. Citizens United v. Federal Election Commission – Thomas Concurrence and Dissent
The Four Justices Who Dissented
Justice John Paul Stevens wrote the dissent, which ran 90 pages. Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor joined it.5Legal Information Institute. Citizens United v. Federal Election Commission – Stevens Dissent Technically Stevens concurred in part and dissented in part, because the four dissenters agreed with the majority that disclosure requirements were constitutional. They would have upheld the spending restrictions as well.
Stevens argued that the First Amendment was designed to protect the political participation of actual people, not artificial entities created under state law. He wrote that corporations are fundamentally different from human beings: they cannot vote, they do not have consciences, and they exist primarily to generate profit. Unlimited corporate spending, Stevens warned, risked drowning out ordinary citizens and creating the impression that elected officials answer to their biggest financial backers.
The dissent also attacked the majority’s decision to overrule Austin and part of McConnell, accusing the majority of abandoning judicial restraint by reaching the broader constitutional question when the case could have been decided on narrower grounds. Sotomayor, the most recently confirmed justice at the time, did not write separately but joined Stevens’ dissent in full.
The Vote on Disclosure Was 8–1
The 5–4 split describes only the ruling on the spending ban. On the separate question of whether federal disclosure and disclaimer requirements could stand, the vote was 8–1, with Justice Thomas as the sole dissenter. Kennedy’s majority opinion stated that while the government cannot suppress corporate political speech, it can require transparency through disclaimers and disclosure.7Federal Election Commission. Citizens United v. FEC
What the Five-Vote Majority Actually Decided
The case began when Citizens United, a nonprofit, produced Hillary: The Movie during the 2008 presidential primary season. Federal law at the time prohibited corporations and unions from spending general treasury funds on broadcast ads naming a federal candidate within 30 days of a primary or 60 days of a general election, and the FEC treated the film as a prohibited corporate-funded election ad.6Federal Election Commission. Citizens United v. FEC
The five-justice majority struck down that ban. After the ruling, corporations and unions could spend unlimited amounts on independent political communications at any time during an election cycle, provided they did not coordinate with a candidate’s campaign.8Federal Election Commission. Understanding Independent Expenditures
The majority did not touch the federal ban on direct corporate contributions to candidates and parties. Under 52 U.S.C. § 30118, it remains illegal for any corporation or labor organization to contribute money directly to a federal candidate, campaign committee, or political party.9Office of the Law Revision Counsel. 52 USC 30118 – Contributions or Expenditures by National Banks, Corporations, or Labor Organizations Coordinated spending still counts as a direct contribution and is still subject to federal limits.