10th Anniversary of Citizens United Talking Points

What is Citizens United? In a 5-4 decision in 2010, the Supreme Court stated in Citizens United v FEC that unlimited political spending, by individuals or by corporations, is protected as free speech under the First Amendment, maintaining that because money is one way Americans “speak” about candidates and elections, to limit spending is to limit free speech rights. In the same case, the Court eliminated past distinctions between individuals and corporations, expanding the rights of legal entities (as opposed to natural persons) to protections under the Constitution. 

How has it affected American elections in the past decade? Since 2010 election spending has skyrocketed. In 2000, approximately $1.6 billion was spent on Congressional elections. In 2018, the number had jumped to $5.7 billion. What’s more, undisclosed spending has exploded in light of the creation of politically active nonprofits, through which corporations, individuals and foreign entities are able to donate to independently run campaigns for candidates without the public’s knowledge. 

Countering 3 key components of Citizens United: 

  1. Money is the same as speech: Equating money to speech decreases equal representation by allowing those with more money to amplify their voices and drown out the voices of those with less money in elections and subsequently in day-to-day governing. In seeking to expand free “speech” rights by removing limitations on political spending, SCOTUS diminished the free speech rights of the average American citizens in the political sphere. With less than 1 percent of Americans contributing most of the money in the U.S. political system, average Americans have little to no say in who successfully runs for office, who wins, and who ultimately represents them. The current system creates a political system so dependent on money that members of Congress prioritize securing it, with the average U.S. representative devoting 30 to 70 percent of her time to campaign fundraising. Incumbents and political party leaders are in the dominant position to demand money, punish those who don’t play, and reward those who can pay with favorable policy; most PAC funding goes to incumbents and 40 percent of state legislative races across the country are uncontested. 
  2. Corporations are entitled to First Amendment rights: The Citizens United decision argued that because corporations are simply associations of individuals, then corporations should have all the same rights as those people. But under the law corporations are more than just collections of individuals, as evidenced by the special privileges and rights they attain by incorporating—one example is limited liability, which makes a corporation liable for actions while shielding the actual humans behind the corporation. This doesn’t mean that the people who come together to incorporate give up any rights by doing so. These individuals retain their constitutional rights as citizens, and in fact these people can also use the corporation to help defend their individual rights through the doctrine of third-party associational standing. However, a corporation, legally and functionally, is an entity distinct from the individuals comprising it. What’s more, corporate entities’ legal structure enables them to accumulate mass quantities of wealth, and corporations, for which changes in regulatory policy may equate to billions of dollars’ difference to their bottom lines, have unique motivations to support or dispute policy and election outcomes, which may not align with the well-being of the American people. Indeed, corporate interests are often contrary to the interests of the general public, and studies find that elite interests are much more likely to be reflected in policy outcomes than those of the general public.
  3. Unlimited political spending will not increase perception of corruption or harm Americans’ faith in democracy: Today faith in our political system is at an all-time low, with 51% of Americans saying they have faith in our democracy, and 37% saying they have lost faith in democracy. In a 2018 poll, nearly 8 in 10 voters said reducing the influence of special interests and corruption in Washington was the most important or a very important factor in their 2018 vote. 

Real-life implications: One example of how big money has devastated the lives of thousands of Americans is the opioid crisis, responsible for the deaths of 130 Americans every day from overdoses. The pharmaceutical companies that manufacture and distribute prescription opioids have been major contributors to the epidemic. Not only do they profit from sales of these highly addictive drugs, these pharmaceutical companies pour huge quantities of money into the political system—supporting politicians and policies that favor reduced regulatory requirements, faster drug approvals, and ever-increasing drug prices. The pharmaceutical industry ranks “consistently near the top when it comes to federal campaign contributions” and donates an average of $30 million every year to congressional candidates. 

Cross-partisan support for historic reform: After seeing the devastating effects of the Citizens United decision on our nation, Americans are poised for a cross-partisan solution. Opposition to unlimited political spending is neither a liberal nor a conservative issue. In recent political surveys, Americans across the political spectrum say there should be limits on the amount of money individuals and corporations can spend on campaigns, that big donors have more influence than others, and that political corruption is the biggest crisis facing the nation. 

Is this a liberal issue? No. A constitutional amendment to overturn Citizens United is backed by 66% of Republican voters, and ending political corruption (i.e. “draining the swamp”) was a key factor in Donald Trump’s successful 2016 presidential bid. Unlimited political spending is undermining free-market capitalism and faith in the American constitutional republic. In a recent poll 61% of Americans aged 18-24 have a positive view of socialism, and only 17% of voters trust the federal government to do the right thing most of the time. Meanwhile big government occupies and controls a larger share of the economy and increasingly picks economic winners and losers via tax subsidies, regulatory carve-outs, spending programs and contract awards. Business competes by buying influence in Washington, rather than by offering better products and services to consumers. 

Why an amendment? An amendment is historically how the American people have overturned poor Supreme Court decisions—including the Dred Scott decision that upheld slavery, and the Minor v Happersett decision that barred women’s right to vote. An amendment creates the constitutional basis necessary to create legislation limiting the influence of big money in elections, and is a more permanent solution than can be offered by legislation. 

What progress has been made toward a cross-partisan solution? The amendment to end the domination of big money in politics has already made significant progress. In 2019, New Hampshire became the 20th state to formally call on Congress to pass such an amendment, crossing the halfway point to the 38 states needed to ratify. Across the nation, more than 800 cities and towns have also passed resolutions in favor of such an amendment, and hundreds of thousands of citizens across the nation are united in working toward this solution.

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