Citizens United vs. Federal Election Commission turns 5 this month, but the damage from the Supreme Court’s revolutionary ruling on campaign finance is just beginning to be felt. Scholars and pundits will undoubtedly mark the anniversary with commentary on such issues as the troubling rise of “super PACs” and the proliferation of undisclosed contributions known as “dark money.” The biggest long-term impact, however, is the powerful framing effect the decision has had on other areas of the law. With last year’s decision in Burwell vs. Hobby Lobby Stores, the idea that “corporations are people” has spread from campaign finance law into the sphere of religious liberty. And there is no reason to believe it will stop there. The idea that ‘corporations are people’ has spread from campaign finance law into the sphere of religious liberty. And there is no reason to believe it will stop there.
In our legal system, the way an issue is first framed can have powerful and long-lasting consequences. Gordon Silverstein, assistant dean at Yale Law School, has described law as a game of Scrabble — the first tiles placed on the board limit the future moves of the other players. For example, in Buckley vs. Valeo (1976), the first campaign finance case of the modern era, the Supreme Court decided that “money is speech” rather than “money is property.” Once campaign contributions were elevated to a form of political speech, election spending became increasingly difficult to regulate. Like a series of tiles on a Scrabble board, the precedent set by this one decision has determined what is politically possible and judicially permissible in the realm of campaign finance for almost 40 years.
The way an issue is framed in one area of law can also wind up having dramatic effects in other areas. Savvy litigators frame their cases in the context of previous wins. In 2012, religious liberties advocates representing a for-profit corporation, Hobby Lobby, pointed to the Citizens United decision in making their case against the Affordable Care Act’s contraceptive mandate. If for-profit corporations could engage in political speech, why could they not also practice religion?