Jan. 21 marks the fifth anniversary of Citizens United v. Federal Election Commission, the Supreme Court ruling that corporations (and, by extension, unions) have a First Amendment right to spend unlimited money on elections. Few recent U.S. Supreme Court decisions have received as much attention — or generated as much public backlash – as Citizens United v. Federal Election Commission. The court and its defenders promised that the ruling – which gave corporations (and, by extension, unions) a First Amendment right to spend unlimited money on elections — would free up more voices to enrich U.S. political debates. Critics predicted a deluge of corporate cash into U.S. elections. Yet neither has been the most striking result of Citizens United. The most stunning consequence is the influence that a few tycoons and other wealthy donors now wield in U.S. elections. Running a close second is the tidal wave of “dark money” from unknown sources making it impossible for citizens to know who is supporting candidates in pivotal races. Both these unexpected and troubling developments undermine American democracy.
For all the controversy it generated, Citizens United was a fairly straightforward case. The corporation Citizens United produced a documentary film attacking then-New York Senator Hillary Rodham Clinton, which it wanted to air on cable TV weeks before a 2008 Democratic presidential primary. This appeared to violate federal campaign-finance law. But five Supreme Court justices ruled that Citizens United had a First Amendment right to produce and air the film. With their decision, the justices invalidated prohibitions on corporate and union election spending that had existed for more than a century.
This was unprecedented. But it did not appear out of thin air. The court’s skepticism of spending limits dates back to another seminal case, Buckley v. Valeo, in 1976. The court there equated spending money with “speech” and ruled that the only permissible goal for campaign-finance limits is to combat “the reality or appearance of corruption.”
The most crucial new part of Citizens United was the court’s radical narrowing of the kind of “corruption” that campaign-finance regulations were permitted to combat. The term “corruption” had been interpreted broadly to mean something like influence peddling. Citizens United, however, imposed a far narrower definition — more akin to American Hustle-style bribery.
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