Midwestern Conservative Thought for the 21st Century

Citizens United v. Federal Elections Commission: The Remaking of American Campaign Finance Reform

Christopher J. Schaefer, MA
9 July 2018

Citizens United v. Federal Elections Commission (2009) was a landmark case, yet still controversial. It was a United States Supreme Court case in which the court upheld the District of Columbia Court of Appeals’ ruling in FreeSpeechNow.org v. Federal Elections Commission (2009), that the First Amendment prohibited the federal government from restricting independent political expenditures by corporations and labor unions. Kathleen Sullivan (2010), in an engrossing Harvard Law Review essay on the impact of Citizens United v. Federal Elections Commission (2009) on campaign spending and free speech, wrote, “By holding that corporations may make independent expenditures from their general treasuries advocating the election or defeat of political candidates, Citizens United v. FEC unleashed a torrent of popular criticism, a pointed attack by the President of the United States, a flurry of proposed corrective legislation in Congress, and various calls to overturn the decision by constitutional amendment” (p. 143).  The purpose of this essay is threefold: to explore the impact Citizens United v. Federal Elections Commission (2009) had on the outcome of the 2012 presidential election; delineate the myriad of reasons why the Supreme Court was correct in its assertion that corporations are entitled to the same free speech rights as individuals; and analyze the impact this decision had on campaign expenditures. Corporations and labor unions, as a result of this decision, had the ability to express their views on seminal political issues and defend those positions through campaign-related speech for the first time in the campaign finance era.

The author, upon conducting extensive research, made several intriguing discoveries about Citizens United v. Federal Elections Commission’s impact on the 2012 election and campaign spending.  First, it was a provision of the Bipartisan Campaign Finance Law of 2002, not Citizens United v. Federal Elections Commission (2009), that was largely responsible for the exponential increase in campaign expenditures (Bai, 2012; Boatright, 2012; Francia, Wesley, & Joe, 2012).  Second, Super PACs were the direct result of the Washington, D.C. Circuit’s ruling in FreeSpeechNow.org v. Federal Elections Commission, not Citizens United v. Federal Elections Commission (2009) (Ball, 2012).  Finally, the most vociferous critics of Citizens United v. FEC, liberal Democrats, benefited most from it in the 2012 election.

One constant refrain made by opponents of Citizens United v. Federal Elections Commission (2009) was that it was singlehandedly responsible for the exponential increase in campaign expenditures.  While the author does not refute the contention that it contributed to an increase in campaign expenditures, it alone was not singlehandedly responsible for the influx of campaign spending.  In reality, it was the Bipartisan Campaign Reform Act (BCRA) that was responsible for the steady increase in campaign expenditures.  BCRA was hailed by its supporters as the necessary first step towards ending corruption and the influence of money in campaigns (Alexander, 2009; Malbin, 2003; Feingold, 2012; McCain, 2003; Timberg, 2007).  In reality, BCRA did very little to end corruption or limit the influence of money in campaigns.  While BRCA eliminated soft money, it created a vacuum for fundraising that contributed to the increase in political expenditures.  Bai (2012) found “The parties could no longer tap an endless stream of soft money, but thanks to the advent of 527’s, with rich ideologues and their own agendas that could write massive checks for the purpose of building what were essentially, shadow parties—independent groups with their own turnout and advertising campaigns, limited in what they could say but accountable to no candidate or party boss” (p. 4).  The level of spending by outside organizations increased by a whopping one-hundred-sixty-four percent between 2004 and 2008 (Bai, 2008; Corrado, 2005).  Once more, outside spending increased by one-hundred-thirty-five percent between 2008 and 2012.  According to Bai (2012), “In other words, while the sheer amount of dollars seems considerably more ominous after Citizens United, the percentage of change from one presidential election to the next has remained pretty consistent since the passage of McCain-Feingold.  And this suggests that the rising amount of outside money was probably bound to reach ever more staggering levels with or without Citizens United” (p. 4).  It was the formation of 527-organizations—an unexpected outgrowth of BCRA—that was responsible for the exponential increase in outside expenditures.

Despite being responsible for the rapid increase in campaign expenditures, 527-organizations and social-welfare organizations had two distinct disadvantages, which led to their demise following the 2008 presidential election.  First, they could not engage in express advocacy—overtly making the case for one candidate or another.  They could encourage voters to call Barack Obama and tell him to stop increasing taxes, for example, but they were prohibited from using the words “vote for or vote against.”  Second, the 527-organizations were prohibited from using corporate money for electioneering communications—radio or television advertising mentioning the name of a candidate within thirty to sixty days of the general election.  The author mentioned the 527-organizations for two reasons: they were largely responsible for John Kerry’s demise in 2004 and became nonexistent after the 2008 presidential election.  The latter was the result of FreeSpeechNow.org v. Federal Elections Commission (2008) and Citizens United v. Federal Elections Commission (2009)—both of which changed the rules on express advocacy and electioneering communications by independent organizations.

Prior to delving into the intricacies of Citizens United v. Federal Elections Commission (2009) and its impact on the 2012 presidential election, it is imperative to dispel a ubiquitous rumor about this case: that it was responsible for the creation of Super PACs.  Mann & Ornstein (2013) found that Super PACs rose to prominence following the Washington, D.C. Circuit’s ruling in FreeSpeechNow.org v. Federal Elections Commission (2008). In fact, following this ruling, three hundred groups analogies to FreeSpeechNow.org, were formed.  These organizations became known as Super PACs and were allowed to spend unlimited amounts of money on express advocacy and electioneering communications, so long as their efforts were not coordinated with those of a campaign committee. As noted earlier, Citizens United v. Federal Elections Commission (2009) prohibited the federal government from restricting the expenditures of corporations and labor unions.  In essence, it maintained that the aforementioned possess the same free speech rights as individuals.  Justice Anthony Kennedy, in the majority opinion, surmised that the First Amendment does not distinguish between media, individuals, or corporations.  Instead, it simply discusses the right to free speech.  As such the Court’s conservative majority maintained that BCRA’s prohibition of independent expenditures by organizations and corporations was a violation of the First Amendment (Citizens United v. Federal Elections Commission, 2009).  The Court believed that pouring money into a campaign led to corruption and, by its very nature, was unconstitutional; independent expenditures cannot lead to corruption.

Citizens United v. Federal Elections Commission (2009), as aforementioned, radically transformed the ways in which outside organizations were able to spend money on campaigns.  According to Bai (2012), “The Supreme Court wiped away much of the rigmarole about express advocacy and electioneering.  Now any outside group can use corporate money to make a direct case for who deserves your vote and why and they can do so right up to Election Day.  The second change was the replacement of 527-organizations with Super PACs. The main difference between a Super PAC and social-welfare group (527), practically speaking, is that Super PACs have to disclose the identity of their donors, whereas social-welfare organizations do not” (p. 2).  The Supreme Court’s ruling that corporations were afforded with the same First Amendment rights as individuals, led to a firestorm of criticism by Democrats and liberal activists.  Following the Supreme Court’s ruling that corporations are entitled to the same free speech rights as individuals, innumerable Democrats and liberal activists were outraged.  They believed this ruling put them at a severe disadvantage in forthcoming elections, as they have fewer large dollar contributors than Republicans (Posner, 2012).  Some went so far as to argue that corporations should not be afforded with the same First Amendment rights as individuals because they are “artificial entities, designed and built by government” (Kinsley, 2012, p. 1).  As such, they posited that corporations do not have the same free speech rights as individuals.

Opponents of FreeSpeechNow.org v. Federal Elections Commission (2008) and Citizens United v. Federal Elections Commission (2009) sought to convince voters that Super PACs were damaging our political system and buying elections.  What they fail to comprehend, however, is that the outcome of elections is determined by votes, not money.  The candidate who receives the most vote, not spends the most money, is declared the winner.  While money is used to purchase advertising and other forms of electioneering communications, scant evidence exists to prove that it determines an election’s outcome. Sekulow (2016) argued that laws preventing individuals from speaking, listening, and thinking for themselves are a violation of the First Amendment.  Likewise, Justice Anthony Kennedy, in Citizens United v. Federal Elections Commission (2009) wrote, “When government seeks to use its full power, including criminal law to determine where a person may get their information or what distrusted source it may or may not hear, it uses censorship to control thought…The First Amendment confirms the freedom to think for ourselves.”  The role of government is to protect, not limit free speech” (p. 13).

To better explain the constitutionality and validity of Citizens United v. Federal Elections Commission (2009), the author, a conservative and strict originalist, turns to two judicial activists.  Kinsley (2012) made what this author considered the best justification for upholding Citizens United v. Federal Elections Commission (2009) on Constitutional grounds.  He refuted the argument made by many of his activist colleagues (cited earlier in this section), by arguing, “If money is not free speech, as many a New York Times editorial has declared, may the government put a limit on how much a corporation can spend publishing a newspaper?  The law Citizens United overturned actually exempted media companies from its spending limits.  But the difficulty—impossibility really—of defining a media company and explaining why it should have more rights than any other company suggests that a right granted to one company should be granted to all” (p. 1).  Opponents of the ruling base their argument on the premise that it will allow the wealthy to buy elections while disenfranchising the downtrodden.  Bill Moyers (2014), an avowed defender of the “Constitution is a living document” thesis, repudiated progressive talking points on the merits of this case, denoting that eighty percent of contributions to Super PACs come from ordinary citizens who have an affliction towards a particular candidate or political party, not just corporations or the well-to-do.

Opponents of Citizens United v. Federal Elections Commission (2009) argued that going forward, citizens will be unable to have their voices or concerns heard, allowing those with wealth to influence elections, and Republicans will remain in the majority due to an influx of contributions by wealthy donors. They do not, however, question the Constitutional merits of this case.  In fact, one cannot even make a cogent argument that Citizens United v. Federal Elections Commission (2009) is in violation of the First Amendment’s Freedom of Speech clause.  Sullivan (2010), despite being opposed to the ruling argued that it did more to expand free speech than any other Supreme Court decision in the campaign finance era.  Once more, Justice Antonin Scalia argued that one cannot separate the speech from the money that facilitates the speech (Cited in Vasilogambros & Mimms, 2012).  The argument made by many supporters of campaign finance reform was that Citizens United v. Federal Elections Commission (2009) and Super PACs would give the Republican party a distinct advantage in future elections.  As the next section indicates, their contentions were unfounded, as Democrats benefited more from the rise of Super PACs than Republicans.

Corporations, labor unions, and wealthy individuals were responsible for more than $933 million of the $6 billion that was spent during the 2012 election.  According to O’Brien and Fuller (2013), nearly two-thirds of this new money—about $611 million—went to ten consulting firms.  In fact, all but one of the ten bought advertising in various media markets on behalf of Super PACs.  The $933 million in spending mentioned above came primarily from Super PACs and nonprofit organizations. The Los Angeles Times (2012) found that a total of 266 Super PACs spent a combined $546.5 million during the 2012 elections.  Seventy-eight percent of those funds were spent on negative advertising.  The Los Angeles Times (2012b) found that $288,654,507 was spent by conservative groups on anti-Obama advertising.  At the outset of the 2012 election cycle, if one were to have told a liberal that President Obama would win reelection despite having nearly $300 million spent against him on negative advertisements by Super PACs, they would have disputed that supposition.  This comports with the author’s thesis: Super PACs have a nominal impact on election outcomes.  It is issues, votes, and external factors, not money that wins elections.  As the 2012 election indicates, money did not determine the outcome of the 2012 election or precipitate a Romney victory—something liberals claimed, as early as 2010, was going to happen. In 2016, Donald Trump and Super PACs supporting his campaign were outraised and outspent by Hillary Clinton, two-to-one. A single-minded focus on issues, immigration, the economy, and trade policy, in particular, issues that resonate with voters of all ideological predilections and political parties, allowed Donald Trump to overcome Hillary Clinton’s fundraising advantage.

Perhaps the most intriguing finding of this essay is that Democrats benefited more from Super PAC spending than Republicans. Michael Podhorzer, political director of the AFL-CIO, was quoted by Ball (2012), as saying “Super PACs are so awesome.  It was long overdue that the Supreme Court recognized that corporations are people like everybody else” (p. 1).  This was an uncommon refrain coming from a union member and liberal Democrat.  But, like this author, Podhorzer recognized that Super PAC spending contributed to Barack Obama’s near-landslide victory on Election Day.  Ball (2012) in discussing some of the ways in which Super PACs helped Democrats wrote, “Both Workers’ Voice and the Credo Super PAC focused on ground organizing an eschewed paid advertising.  They saw their ability to use data-based, person-to-person campaigning as an asymmetrical advantage against better-funded groups on the right” (p. 2).

A fundamental restructuring of the United States Supreme Court, a possibility that appears likely following Anthony Kennedy’s recently announced retirement, could result in the greatest expansion of election-related free speech in American history. Neil Gorsuch, Donald Trump’s first appointment to the United States Supreme Court, believes that corporations are entitled to the same free speech protections as individuals. If a case to eliminate individual contribution limits were to come before the current Supreme Court, it is likely that the justices would rule on the side of free speech.

Christopher Schaefer, a presidential historian and political consultant, resides in Madison, Wisconsin, and is the author of four books: The Great President: The Policies that Shaped the Bush Legacy; 41 vs. 43: The Reluctant Realism of George H.W. Bush, the Primacy of George W. Bush, and the War in Iraq; The Presidential Simulation: A Student’s Guide to Understanding the American Presidency; and Project Mastodon: Building a Twenty-First Century Republican Party (2 vols.). Schaefer received his BA in Politics and Government from Ripon College and MA in Political Management from the George Washington University.


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