Despite public discontent at the influence of Big Money on politics, much of the attention is focused on the famous (or infamous) Citizens United v. Federal Election Commission (FEC) verdict issued in 2010 by the Supreme Court. Survey data suggests that an overwhelming number of Americans—members of both major parties—believe there should be limits on money spent by groups and individuals in support of political candidates. (1) And yet the Supreme Court continues to disregard campaign-finance regulation efforts, rejecting the widely held public consensus.
Shifting the focus
Although a great deal of the public’s outrage about money in politics is directed at the Citizens United decision—in which dissenters maintain that the Court had said that “corporations are people.” But the reality isn’t so simple—and Citizens was no isolated decision. Rather, it is better understood as one chapter in a decades-long effort by a faction of the Court’s conservative judges to undermine Congress’s ability to regulate campaign spending under the flag of free speech concerns.
What’s really at play?
Citizens United was brought before the court when the FEC—the government agency responsible for enforcing federal election law—barred a nonprofit group called Citizens United from airing a film that was critical of Hillary Clinton during the 2008 Democratic presidential primary. In trying to block the film, the FEC was attempting to enforce a law passed by Congress in 2002—the Bipartisan Campaign Reform Act (the BCRA, also known as the McCain-Feingold Act, for the two senators who authored it). The BCRA created a ban on “electioneering communication” within a short window before an election, and Citizens United sued, saying the law was unconstitutional. A slight majority of the Court’s justices agreed, and they overturned the BCRA’s electioneering provision.
While the Court did not make the blanket proclamation that “corporations are people,” it did hold that since the Constitution does not distinguish between people and corporations in speech matters, there is no legal framework to treat their rights separately. The Court then married this idea—that corporations have First Amendment speech rights—with an idea established in 1976’s Buckley v. Valeo, that money is equivalent to speech in a political context. So, the Court reasoned, if money is speech and corporations have speech rights, limiting how the money they spend on politics is a First Amendment restriction.
It is important to note that Citizens United did not give corporations or individuals the unlimited right to spend money as they choose. Since Buckley v. Valeo, the Court has held that limiting corruption is a valid use of government regulation on spending. Therefore, both individuals and corporations still have limits on how much they can donate directly to a candidate ($2,900, last we checked), in the interest of limiting the ability of deep-pocketed donors to offer outright bribes to candidates in exchange for cash.
But donating to a candidate wasn’t what the nonprofit group Citizens United was trying to do with its anti-Hillary film. They were spending their own money—under their own legal umbrella—to oppose a candidate. This is what the BCRA called “electioneering” and what the Court, in Citizens United, ruled cannot be limited. The legal framework that limits donations to candidates but allows unlimited money to be spent by non-affiliated entities is the basis for the super PACs, which raised and spent billions in 2020.
Though the Court’s ruling can provoke righteous frustration, there is no denying the thorny questions at hand, or the difficulty in fairly regulating “electioneering.” If a citizens group raises money to air a series of commercials asking voters to contact their senators about an issue before an election, shouldn’t they be able to do so? That was just the question at hand in FEC v. Wisconsin Right to Life, Inc., a case the Court heard three years before Citizens. Imagine a world where the government could decide when groups of citizens could publicly address political issues—not just which issues they could discuss, but how and when. Now imagine the government, under both parties, having that power. There are strong arguments on behalf of stripping the government of its regulatory power here. Further, defenders of Citizens are likely to argue that corporations aren’t buildings and logos; they’re people who have chosen to arrange their financial agreements within a certain legal framework. Should doing so force them to forfeit a legal right they’d otherwise maintain?
Where are we today?
Opponents of regulation, for the most part, anchor their opposition to Citizens and the other decisions that have accompanied it in two central points.
First, the dramatic increase in the speech allowed to wealthy individuals by deregulation diminishes the speech rights of everyone else. One single man, Sheldon Adelson, donated $218 million to Republican candidates in 2019 and 2020 alone—an amount that is eight million times the size of the average donation to the Bernie Sanders campaign. Is the Court’s protection of Adelson’s speech rights not accompanied by the drowning out of the voices of millions of non-billionaire Americans?
And second, common sense tells us that a direct contribution to a candidate does not necessarily create the potential for corruption. If a man like Adelson spends hundreds of millions of dollars attacking the opponents of his favorite candidate, would his candidate feel any less indebted to Adelson than if he’d written his opponents a check for the same amount? Here in California, police groups spend millions of dollars in defense of district attorney candidates, often assisting their election to jobs where they will have to decide whether to prosecute police officers who shoot and kill citizens while performing their job. Are we to suppose the district attorney doesn’t remember who spent the money that got them elected—or that, if they hope to be reelected, that money doesn’t factor into their decision-making?
The campaign-finance debate is rich and complicated, involving many hard questions. What, precisely, is corruption? Do citizens who organize themselves into corporations forfeit their rights in doing so? Is it the goal of the First Amendment to allow all political speech, or to ensure that everyone’s voice is heard?
The questions persist, but on one matter, there is no question: the American public, on both sides of the political aisle, is dissatisfied with the status quo. But until we see a dramatic shift in the perspective of the Supreme Court, the playing field is likely to remain tilted toward deregulation, unlimited expenditure, and Big Money—and those who can afford to spend it.