Citizens United v. Federal Election Commission: Free Speech or Corruption in Plain Sight?

Citizens United v. FEC (Federal Election Commission) is arguably one of the most important First Amendment cases in the history of the United States. This Supreme Court case ruled that the government cannot restrict independent expenditures for corporate communications, and that corporations have the same free speech rights as citizens. An independent expenditure in this context is an expenditure for a communication that advocates for or against a candidate running for office and is not in coordination with any political party, campaign, or candidate. (Understanding Independent Expenditures). Many count independent expenditures as a type of campaign contribution. Furthermore, the idea that corporations have the same speech rights as citizens is grounded in the idea that corporations are associations of citizens, rather than legally autonomous entities that are different from those who own their stock. (Macey and Strine, 451). The Citizens United ruling equates corporations with people and money with speech. (Leach, 95). Yet, those aspects of the case are not what has transformed the campaign finance landscape. What changed the landscape of campaign finance was the way the Court defined corruption. Before the Citizens United case, the Court ruled that restrictions on campaign speech violated the First Amendment unless it was to prevent corruption or the appearance of corruption. (Marino, 1199). After the Citizens United ruling, the Court adopted a much stricter definition of corruption that only involved an outright quid pro quo. (Gerken, 908). The Court did not acknowledge other forms of potential corruption, such as dependence corruption, which is when a representative becomes dependent on their funders. The Citizens United case is not important because it decided corporations are equivalent to people or that money is equivalent to speech. It is important because in doing so it lowered the threshold for what is to be considered corruption and opened the door for more dark money to funnel into candidates' campaigns. Proponents of the elite theory of democracy often point to the Citizens United case as a turning point. In sum, the Citizens United ruling has lowered the threshold for what is to be considered corruption, which is detrimental for democracy. 

The Citizens United Case is complex, let alone campaign finance law. In 1990 there was a case, Austin v. Michigan Chamber of Commerce, where the Court ruled that it was constitutional for Michigan to prohibit corporations from using their treasury funds to make independent expenditures in connection with state elections. (Austin v. Michigan State Chamber of Commerce). In 2008, a non-profit conservative corporation, called Citizens United released a movie about Hillary Clinton while she was running as a Democrat for president. This would not have been a problem if they had not released the film within 30 days of the primary election. Corporations and labor unions were only allowed to use their independent expenditures for campaigning if it was 30 days before a primary or 60 days before a general election. During those time periods before an election, the Federal Election Campaign Act prohibited corporations and labor unions from using their general treasury funds to make electioneering communications or conducting public speech that were for or against a federal candidate. Electioneering communication is any publicly distributed cable, satellite, or broadcast communication. (Citizens United v. FEC). Hence, Citizens United challenged this law and brought it all the way to the Supreme Court. The Court realized that prohibiting Citizens United from airing this movie would mean they would also have to prohibit any book that was published by a corporation that advocated for a candidate, even if it were only in a single line. The catch was that they could publish the book within that period if they used PAC (Political Action Committee) funds, rather than general treasury funds. (Smith, 2020). The Courts ruled on Citizens United’s side with a 5-4 ruling that stopped the government’s ability to restrict independent expenditures from corporate treasuries as a violation of the First Amendment. The conservative justices were the ones to vote in favor of Citizens United. This Supreme Court decision paved the way for super PACs (Political Action Committees) to form, which are committees that may receive unlimited contributions from corporations, individuals, labor unions, and other PACs, for the purposes of independent political activity. (Political Action Committees (PACs)). There are many controversial views with regards to super PACs; many think that independent expenditures should have a cap.  

It is wrong to say that Citizens United ruling opened the floodgates for corporate spending in elections; it simply widened the floodgates.  There was a Court decision before Citizens United occurred that allowed certain kinds of corporate and union ads to be constitutionally protected given they were phrased carefully and did not explicitly encourage people to vote for or against a candidate. Citizens United simply eliminated the need for careful phrasing of advertisements. (Gerken, 907). It is also wrong to blame the Citizens United decision for dark money existing, although the decision made the problem worse. Yale University Professor Gerken states, “Citizens United ruled eight to one in favor of the constitutionality of transparency measures, upholding a variety of disclosure and disclaimer rules. The fact that so much independent election spending is “dark money” must be laid at the feet of Congress and the Federal Election Commission (FEC), which have failed to enact adequate disclosure regulations.” (Gerken, 907). The United States has a dark money problem in elections due to a lack of regulations by Congress and the FEC. However, the Citizens United ruling exacerbated this problem by deregulating independent spending even though there were inadequate disclosure measures. Congress and the FEC have not imposed any new regulations on the matter. In sum, the Citizens United case was important given the Court narrowed the definition of corruption, not because it equates corporations with people and money with speech. (Gerken, 908).  

There is this perception that many of the Congresspeople have become dependent on outside independent expenditures. The early constitution states in Federalist No. 52 that Congress must be “dependent on the people alone” (Madison and Hamilton, 1788). Many would argue that unlimited independent expenditures cause Congress to become dependent on their funders for advertisements, rather than the people alone. The Citizens United ruling made it so the government could no longer put a cap on outside independent campaigning, the Court argued independent expenditures do not cause corruption. Justice Anthony Kennedy even wrote, “Independent expenditures... do not give rise to corruption or the appearance of corruption. That speakers may have influence over or access to elected officials does not mean that those officials are corrupt. And the appearance of influence or access will not cause the electorate to lose faith in this democracy.” (The Supreme Court of the United States, 2010). This essay will later address public opinion more specifically, nevertheless, most Americans have lost faith in democracy and view Congress as corrupt. Furthermore, many other scholars do not agree with the Courts, such as Harvard University Professor Lawrence Lessig, who coined the term “dependence” corruption as a subset of institutional corruption. Dependence corruption is due to general influence on the institution that weakens its effectiveness, while simultaneously weakening the public's trust in that institution. (Lawrence Lessig - Institutional Corruption). The interesting aspect about this is that not all corporations are rushing in to donate, politicians need to buy “insurance” by affiliating themselves with super PACs. This “insurance” ensures that another super PAC cannot out fund the candidate. Politicians can affiliate or get close to super PACs by voting their way on policy issues. (What Is a Super PAC and Should It Be Legal? 0:30-2:06). Furthermore, Lessig states, ‘"Dependence corruption" would, however, be critically relevant to whether aggregate limits on total contributions to candidates and parties are constitutional. It is hard to see those limits as related to "corruption" in the quid pro quo sense. But it is easy to see those limits related to "dependence corruption”’ (Lessig, 21). Lessig is addressing possible solutions to this idea of dependence corruption, which include limits on the amount of funds corporations can donate to super PACs. The real question to ask is if this dependency on independent expenditures truly changes the way Congresspeople vote in the Senate or House.  

Professor Bradly Smith would disagree with Professor Lessig on aspects of this issue. Smith thinks that the Citizens United ruling was simply good for free speech and good for democracy. Smith focuses on certain aspects of the Citizens United case, while ignoring the element of corruption. When asked, Smith claims that he does not think Congress is corrupted in any way and that Congresspeople tend to vote according to their ideology. His main arguments focus on the free speech element, he states, “Why is all of this controversial? Is it really possible that the constitution allows the government to censor books and movies about politicians?” (Free Speech? Citizens United v FEC Revisited, 30:34-30:41). Smith thinks that what is shocking is that the 4 liberal justices said the government could censor books and movies.  Furthermore, Smith does not agree with Lessig with regards to money influencing policy makers congressional votes. Smith simply claims that there is no empirical evidence to suggest this. Others do not agree with Smith; Former House member, Professor Leach, for instance, states, “Politicians routinely develop conflicts that do not technically rise to a legal standard of corruption because legislated law and now judicial fiat have weakened that standard.” (Leach, 101). Smith misses the point; the Citizens United ruling was bad because it lowered the threshold for what is to be considered corruption. Nevertheless, Smith is correct when he says it would be very bad if the government was allowed to ban books and movies. But many still argue the Court should have had a better definition of what is to be considered corruption or simply not allowed unlimited outside independent spending on elections.  

Lessig claims the opposite of Smith, that there is empirical evidence to show that campaign contributions influence the way law makers vote congressionally. This is the problem with politics today, even law professors cannot agree on what has been empirically supported. The fact is that there were multiple notable studies that concluded PAC contributions did not matter, but those studies were flawed, many only looked at a small number of congressional votes. Those studies then tried to make broad generalizations with regards to all bills Congress votes on. There is in fact significant evidence that PAC contributions affect the way Congress votes, 30 plus studies to be exact. (Peoples, 31). One meta-analysis states, “The results in this paper support the hypothesis that contributions and changes in contributions cause changes in voting behavior.” (Stratmann, 22). Another study states, “...our results affirm the importance of some types of coalition lobbying in influencing early outcomes within the regulatory policymaking process.” (Nelson and Yackee, 351). Another meta-analysis had a similar conclusion -- PACs significantly impacts roll call voting. (Roscoe and Jenkins, 2005). It is important to note that several studies have concluded that donor influence is lowest on high-visibility legislation and highest on low-visibility legislation. (Peoples, 33). There is a question of causality to consider; are contributions causing votes or are votes causing contributions? The evidence suggests that contributions are causing Congresspeople to vote in certain ways. (Peoples, 34).  

There is also an abundance of indirect evidence that money influences Congress. For instance, donors sometimes openly admit that they expect something in return for their contributions. Former Secretary of Education, Betsy DeVos, for instance, once said with reference to her own donations (before serving as Secretary of Education): “I have decided to stop taking offense at the suggestion that we are buying influence. Now I simply concede the point. They are right. We do expect something in return.” (Strauss, 2017). The real question is, why else would someone donate enormous amounts of money to a super PAC? It seems logical that they are expecting something in return, especially when it is a corporation. In 2015, former President Trump has even stated during the first Republican primary debate, “I give to everybody. When they call, I give. And you know what? When I need something from them, two years later, three years later, I call them, and they are there for me” (Prokop, 2015). It seems clear that doners expect something in return, even if they do not get it every time. Do people really think that pharmaceutical companies, for instance, donate so much money due to their ideology? In 2022 alone, pharmaceutical companies donated over 26 million dollars collectively to both Democrats and Republicans. (Pharmaceuticals: Money to Congress). Could that be why the United States is one of the only modern democratic countries that allows pharmaceutical companies to price gouge on life saving medicine? The average cost of insulin in the United States is $98.70, whereas it is only $12 in Canada. (Cost of Insulin by Country 2023). The problem is not just pharmaceutical companies, money has infected nearly every sector. Another example would be health insurance companies, they donate massive amounts of money to campaigns every year. Blue Cross/Blue Shield for instance, donated over $20 million in 2022. (Insurance). Is it a coincidence that health insurance companies donate massive amounts of money to elections and the United States is still one of the only modern countries not to guarantee healthcare as a human right? This essay will not go into great detail with regards to the other important sectors to consider, such as defense contractors, the oil and gas industry, communication/technology industry, transportation industry, and more. In most other modern democratic countries, the way the United States funds elections is against the law and simply considered a type of corruption. (Thompson, 2012). 

Public opinion on the matter is clear; most Americans believe congress has been corrupted. According to a Gallup poll, 52% of Americans believe that most members of Congress are corrupt, while 69% of Americans believe that Congress focuses on special interests, rather than their constituents. (Dugan, 2023). Another poll from the Washington Post found that nearly 7 in 10 Americans believe that super PACs should be against the law. (Blake and Cillizza, 2012). Even if money is somehow not influencing policy, most people think it does. Before Citizens United, this perception of corruption alone would have warranted governmental regulation. Although the public's opinion alone does not inherently mean much; some argue that this perception of corruption alone is enough to warrant regulatory actions by the government.  

The elite theory of democracy is also something to consider, which is a theory that states a small minority of people make most of the important decisions. Some believers of this theory think the United States is truly an oligarchy, rather than a democracy.  (Janda, et al, 40). Furthermore, most proponents of this theory believe that the United States needs major campaign finance reform. They also view the implications of the Citizens United ruling to be problematic. The textbook, The Challenge of Democracy: American Government in Global Politics, states, “Perhaps the strongest evidence [for the elite theory of democracy] is the documentation of the correspondence between the preferences of the wealthy and policy outcomes...Another form of great influence is the elite’s alleged power to keep issues off the political agenda. That is, its power derives from its ability to keep people from questioning fundamental assumptions about American capitalism.” (Janda, et al, 40). Hence, some of the empirical evidence would be hard to quantify if it is in terms of what is not voted on. The fact is that the wealthiest Americans interests are disproportionally represented in terms of policy outcome, which is more indirect evidence that contributions are influencing policy. Is it a coincidence that the people who donate the most money have their policy positions disproportionately represented? Regardless of whether the elite theory of democracy is true, it is simply a fact that Congress tends to represent the wealthiest people better than the rest, possibly at everyone else's expense. (Janda, et al, 119).  

In conclusion, the Citizens United ruling lowered the threshold for what is to be considered corruption. This case also ruled that the government cannot restrict independent expenditures for corporate communications, and that corporations have the same free speech rights as citizens. Many think this Supreme Court case was important given the Court said corporations have the same free speech rights as citizens and equated money with speech. That was not the important element; the way the Court’s decision affected the legal definition of corruption is what transformed campaign finance. Before the Citizens United case, the Court ruled that restrictions on campaign speech violated the First Amendment unless it was to prevent corruption or the appearance of corruption. (Marino, 1199). After Citizens United, the Court did not consider that there could be any other types of corruption besides a direct quid pro quo, such as dependence corruption. Thus, allowing unlimited independent expenditures meant the government could only regulate their “speech” if there was an outright quid pro quo, effectively changing the definition of corruption. Furthermore, it seems that some of the donors' power is in keeping issues off the table, which means those issues would not even have a House or Senate vote. (Janda, et al, 40). The vast majority of Americans believe Congress is corrupt (Dugan, 2023) and that super PACs should be against the law. (Blake and Cillizza, 2012). Many also point to the insiders, some of them have openly admitted that they expect something in return for their contributions, such as former President Trump or former Secretary of Education, Betsy DeVos. Moreover, the Citizens United ruling exacerbated many problems, which include the issue of dark money flowing into many of these super PACs. All of this is not good for democracy; Congress is supposed to be accountable to the people alone, not their funders. In many other countries, they have publicly funded elections to avoid these kinds of problems. In sum, the Citizens United ruling has lowered the threshold for what is to be considered corruption, which is detrimental for democracy. 

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