Citizens United and Twelve Years of Unjustified Resentment

by Bob Fiedler | Jan 27, 2022

It was 12 years ago this week that the Supreme Court handed down it’s notable, even infamous ruling in Citizens United v  Federal Elections Commission. Even after 12 years those who vilify the case are completely unable to accurately describe the legal questions at play, the Court’s primary holding, or what effect this decision has had in any applicable area of law or politics.

What was the Citizens United case was about? Well, the organization Citizens United challenged a Federal Elections Commission violation they were hit with. What FEC regulation did they violate? Did they bribe a politician? Did they give donations without disclosing them? Were they spending money that originally came from foreign governments? No, Citizens United got in trouble for showing a movie.

That’s right, “Hillary: The Movie” was a 2008 political documentary produced by the nonprofit organization. The movie was offered as an on-demand video on cable before the 2008 Democratic primaries and therefore it was considered electioneering. And the money that was spent on the film qualified as an independent expenditure. According to the Bipartisan Campaign Reform Act, or McCain-Feingold, a corporation, including a nonprofit corporation, cannot advocate for or against a candidate running for office 30 days prior to a primary election, or 60 days prior to a general election. So under this law, a group of people needed the government’s permission regarding whether or not they could show a film critical of Hillary Clinton. That’s the law that the Citizens United case nullified and Citizens United is the case seemingly everyone on the left seeks to overturn.

Many of you likely didn’t know those details. Most people don’t. It’s one of the most misunderstood things in all of American politics. Most people think that this Court decision established that money is speech and that corporations are people. Amazingly enough, those two specific phrases that everyone associates with the case never actually appeared in either the decision or the dissent. Second of all, neither the concept of corporate personhood nor the connection between money and speech were ever disputed by either party to the case.

Most commenters, though not all, grounded their opposition to the Supreme Court’s ruling in two rather absolute principles; (1) corporations are not persons and therefore have no First Amendment or free speech rights and (2) money is not speech and therefore restrictions on how money is spent cannot violate the First Amendment’s free speech clause. What makes those arguments so bizarre is that none of the nine justices, including the four dissenting justices, argue either of those propositions or believe them. To the contrary, all nine justices, including the four in the dissent, agree that corporations do have First Amendment rights and that restricting how money can be spent in pursuit of political advocacy does trigger First Amendment protections. As Justice John Paul Stevens who wrote the dissent says,

“Of course, speech does not fall entirely outside of the protection of the First Amendment merely because it comes from a corporation and no one suggests the contrary.”

Justice Stevens also wrote, “that even though the expenditures at issue were subject to First Amendment scrutiny, these restrictions on these expenditures were justified by compelling state interest.” In other words, Stevens believes that spending money on speech is covered under the First Amendment. Congress just has an interest in regulating it in some situations.

You see, the legal concept of corporate personhood goes back hundreds of years. Remember, a corporation legally speaking is just a group of people. Yes, it includes large, multinational for-profit corporations like Walmart and Exxon Mobil. But it also includes labor unions, nonprofit corporations like the ACLU, (which endorsed the Citizens United decision), and the Libertarian Institute itself is a 501(c)(3) that benefits from the First Amendment protections of this case—as well as small, limited liability corporations.

Granting these entities constitutional rights is simply predicated on the idea that individuals don’t sacrifice any of their civil liberties when they form into groups. So, to pose a simple question to all those who are against Citizens United and wish to see it overturned—and anyone who claims that since corporations are not persons, they have no rights under the Constitution—do you believe the FBI has the right to enter and search the offices of the ACLU without probable cause or warrants and seize whatever they want? Do they have the right to do that to the offices of labor unions? How about your local business on the corner which is incorporated? The only thing stopping them from doing that is the Fourth Amendment if you believe that corporations have no constitutional rights, because they’re not persons. What possible objection could you voice to Congress empowering the FBI to do these things? Can they seize the property, the buildings, cars, and bank accounts of those entities without due process or just compensation? If you believe that corporations have no constitutional rights, what possible constitutional objection could you have to such laws and actions?

Now to the point of money and speech. This is just the idea that engaging in speech in any meaningful way (anything more sophisticated than standing on the street corner and yelling) costs money, therefore regulations on the money somebody can spend on speaking is regulating speech by proxy. Think about it; printing a newspaper costs money, hosting an online news show costs money, placing a television ad costs money and so forth.

Regulating the amount of money someone can spend, where they can get that money, when they can spend it, and where they can spend it undoubtedly jeopardizes the speech itself. All nine justices of the Supreme Court at the time agreed. This actually goes back to the 1976 Supreme Court case Buckley v. Valeo.

Here, the majority ruled that limits on expenditures are necessarily at odds with the First Amendment because restrictions on spending for political communication necessarily reduces the quantity of that expression. The funny thing is, the Citizens United critics acknowledge this. So for Senator Bernie Sanders or Justice Democrats this is actually part of the point of their campaign finance efforts. In their understanding, if money is speech then the more money you have, the more speech you have. And if corporations are people, people who have a lot more money than you or I (ie corporations) have a lot more speech than the rest of us.

They think that it’s unfair that some candidates can purchase more advertisements than others and that needs to be corrected in Citizens United. The dissenting justices never said that money isn’t speech. What they did argue is that Congress had a compelling state interest in regulating it on the grounds of preventing corruption. So does this money in the system cause corruption? That’s what critics emphasized, arguing the Court’s ruling will produce very bad outcomes, primarily the exacerbation of corporate influence on the republic. Even if that is true, it’s not really relevant. Either the First Amendment allows these speech restrictions or it doesn’t. In general, a law that violates the Constitution can’t be upheld because the law produces good outcomes, or because its invalidation would produce bad outcomes.

Many think that America is too far gone in terms of corporate control of politics. I think it’s a very overrated problem. But it is a problem. And our current campaign finance regime contributes to that problem. But that’s not relevant to the speech question. We also have racism in this country. And that’s a problem too, and allowing the Ku Klux Klan to hold one of their stupid rallies contributes to that problem. That doesn’t mean they don’t have the right to hold it, and invoking the state interest isn’t really persuasive either. Virtually anything can be justified by that rationale. And that argument has been used to curtail civil liberties in other contexts. So when people talk about limiting independent expenditures, they’re actually talking about limiting your ability to engage in political advocacy.

Citizens United simply doesn’t stand for what many people say it does. Their erroneous lamentations are well characterized by President Obama’s famous statement during his 2010 State of the Union Address:

“The Supreme Court reversed a century of law that I believe will open the floodgates of special interests—including foreign corporations—to spend without limit in our elections.”

In that one sentence, the former law professor made four errors that are all too common.

First, Citizens United didn’t reverse a century of law. The president was referring to the Tillman Act of 1907, which banned corporate donations to campaigns. Such donations are still banned. Instead, the decision overturned a 1990 precedent that upheld a ban on independent spending by corporations. That 1990 ruling, Austin v. Michigan Chamber of Commerce, was the only time the court allowed a restriction on political speech for a reason other than the need to prevent corruption.

Second, the “floodgates” point depends on how you define those terms. In modern times, nearly every election cycle has seen an increase in political spending, but there’s no indication that there’s a significant change in corporate spending. And the rules affecting independent spending by wealthy individuals, who are spending more, haven’t changed at all.

Indeed, much of the corporate influence peddling in Washington that has reformers concerned has nothing to do with campaign spending. Most corporations spend far more on lobbying lawmakers already in Washington than they do in political spending to choose which politicians come to Washington.

Third, Citizens United said nothing about restrictions on foreign spending in our political campaigns. In 2012, the Supreme Court summarily upheld just such restrictions.

Fourth, while independent spending on elections now has few limits, candidates and parties aren’t so lucky. Even last year’s decision in McCutcheon v. FEC, which struck down aggregate—not per‐candidate—contribution limits, only affected the relatively few bigwigs (about 600 in the 2012 cycle) who had hit the $123,200 cap. The amount that an individual can give to a single campaign remains untouched.

And so, if you’re concerned about the money spent on elections—though Americans spend more on Halloween—the problem isn’t with big corporate players. Exxon, Halliburton, and all these “evil” companies (or even “good” ones) aren’t suddenly dominating the conversation. They spend little on political ads because they don’t want to alienate half of their customers.

On the other hand, smaller players now get to speak freely: groups such as the National Federation of Independent Business, Sierra Club, the American Civil Liberties Union, and the National Rifle Association. Even if we accept “leveling the playing field” as a proper basis for regulation, the freeing of associational speech achieves that goal.

People don’t lose rights when they get together, be it in unions, advocacy groups, private clubs, for‐profit enterprises or any other group.

By removing limits on independent political speech—spending by people unconnected to candidates and parties—Citizens United weakened the government’s control of who can speak, how much, and on what subject. That’s a good thing.