It has been ten years since the Citizens United Supreme Court decision. This being a presidential election year, it might be a good idea to revisit this case.
The Bipartisan Campaign Reform Act (BCRA) of 2002—the McCain-Feingold Act—prevented corporations or labor unions funding “electioneering communications” that refer to a candidate for federal office within 60 days of a general election and within 30 days of a primary election.
In Citizens United v. Federal Election Commission, which was decided by the Supreme Court on January 21, 2010, by a 5-4 vote, the Court reversed the ruling of the U.S. District Court for the District of Columbia that upheld the provisions of BCRA prohibiting unions and corporations from broadcasting the abovementioned “electioneering communications.” Unions and corporations no longer have to create political action committees (PACs) to spend money on “electioneering communications.”
President Obama famously condemned the Citizens United decision during his 2010 State of the Union Address:
Last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests — including foreign corporations — to spend without limit in our elections. Well I don’t think American elections should be bankrolled by America’s most powerful interests, and worse, by foreign entities. They should be decided by the American people, and that’s why I’m urging Democrats and Republicans to pass a bill that helps to right this wrong.
To this day, Democrats and progressives have never gotten over it. On the tenth anniversary of the decision, Elizabeth Warren maintained: “We need a constitutional amendment to overturn Citizens United.” Hillary Clinton opined: “Ten years ago today, the Supreme Court’s decision in Citizens United unleashed hundreds of millions of dollars in corporate and special-interest money into U.S. elections. The next president should propose a constitutional amendment to overturn the decision.” And then there is Bernie Sanders: “Today marks 10 years since the disastrous Citizens United Supreme Court decision, which allows corporations to spend unlimited money on elections. We are going to overturn that decision and get corporate money out of politics.”
Although the BCRA was presumably about campaign financing, it was clearly designed to permit the government to limit who could speak and when they could speak. Clearly, then, Citizens United was a victory for free speech.
The First Amendment reads:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.And as the majority opinion of the Supreme Court states: “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.”
The problem with Citizens United is that it didn’t go far enough. Unions, charitable organizations, religious organizations, and corporations still cannot use funds from their treasuries to make contributions directly to political candidates or for independent expenditures that advocate the election or defeat of a candidate in federal elections. There are still limits on campaign contributions.
In a free society, individuals, groups, organizations, corporations, and unions would be free say or publish anything at any time about any political candidate. They would also be free to spend any amount of money in whatever way they choose for or against any candidate they choose. There would be no speech restrictions, public financing of elections, spending limits, donation limits, disclosure requirements, distinctions between hard and soft money, or campaign-finance restrictions.