The Real Problem With Citizens United

Citizens United is one of the most universally hated Supreme Court decisions. Across the political spectrum, almost no one is a fan. But many people think the central issue with Citizens United is that corporations were declared people, and that the solution is therefore to make them unambiguously not (through a constitutional amendment, for instance). This is not true, and it’s important we understand the logic and flaws in the majority opinion before we can evaluate possible solutions.

Let’s back up. In 2009 the Supreme Court heard arguments in Citizens United v. Federal Election Commission. The case itself was about a specific nonprofit, Citizens United, advertising a film critical of Hillary Clinton close to the 2008 Democratic primary. And although the decision would dramatically change the legal landscape for all nonprofits, corporations, and unions, it was based on logic that starts with an individual.

If a single person goes out and buys a yard-sign, or creates a poster with which to protest or express their views, their activities are protected by their freedom of speech. Likewise, if two or more people get together and decide to craft a large banner they might all hold, they are all protected. This even holds if the people create a more formal organization together so that they might buy something larger, like advertising time on television. Thus, the reasonable conclusion is that freedom of speech applies even when people are working together as part of a large corporation.

This is the essence of the logic penned by Justice Kennedy, and on those terms, it’s hard to argue with. Surely we want to protect some of these activities, so where would Congress draw a line? And how would we stop groups from circumventing the restrictions by acting as individuals and coordinating behind the scenes? Quickly, regulating campaign finance becomes a game of whack-a-mole where we’re trying to regulate the amount of speech different parties get.

Now flash forward to the present, 2015. Special interest spending on campaigns has exploded. Billions are now spent by outside groups on presidential elections, and candidates don’t stand a chance unless they’re one of the top fundraisers. In effect, there is now a price on admission. This brings us to the fundamental flaw in the logic of the majority opinion.

The framers of the constitution clearly wanted to establish Congress as being dependent on the people alone, and that’s simply impossible when candidates are dependent on large donors. By opening up the floodgates to preserve free speech, we undermine the integrity of Congress.

This issue has come before the Justices of the Supreme Court before. The Buckley v. Valeo decision of 1976 held that Congress had the right to ban contributions just for suggesting possible corruption. They wrote: “Of almost equal concern as the danger of actual quid pro quo arrangements is the impact of the appearance of corruption…” In the Citizens United decision, however, Kennedy dismisses the problem, saying “The appearance of influence or access… will not cause the electorate to lose faith in our democracy,” claiming citizens will feel sufficiently in control because they have the power to vote.

There are obvious problems with Kennedy’s theory. Who, for instance, is really in control when voters get to pick only after those with money have screened the candidates?

A recent poll conducted by the New York Times and CBS News showed quite clearly what people think. A full 84% of Americans feel money plays too big a role in politics, and 66% think this translates into wealthy people having an outsized share of influence. Digging deeper into the effects of this influence, they found that a majority (55%) of Americans think that politicians promote policies that directly help their campaign backers “most of the time,” and another 30% think they do so at least “some of the time.”

With results like that, it seems impossible to defend our current campaign finance system on free speech grounds. And since it’s clear that Congress has the power — indeed, the obligation — to prevent even the appearance of bribery, we should be looking for solutions. But as we do, we need to remember that the issue isn’t whether corporations are considered people. Instead, it’s how we let people exercise their rights to free speech without compromising the dependence of Congress on the people alone.


If you’re interested in campaign finance, check out Repubic Lost and the Mayday PAC.