Happy sixth birthday, Citizens United! In honor of the opinion we’ve come to know and love (to hate), we’re revisiting the decision and its impact this election season.
What changed the Justices’ minds in those twenty years?
Nothing. Not a single justice shifted positions from 1990 to 2010, but we saw a significant justice swap in that time. That’s how Justices Kennedy and Scalia, who dissented in favor of corporate speech in Austin v. Michigan Chamber of Commerce in 1990, re-emerged in 2010 as the majority with the help of the more-recently appointed Chief Justice Roberts and Justices Thomas and Alito. Meanwhile, Justice Stevens, the only justice left from the Austin majority, found himself outnumbered in Citizens United.
Refresher: Why is Citizens United problematic?
Take it from the others on the bench. These bits come from Justice Stevens’ dissent.
- “Corruption can take many forms. Bribery may be the paradigm case. But the difference between selling a vote and selling access is a matter of degree, not kind.”
- “It might also be added that corporations have no consciences, no beliefs, no feelings, no thoughts, no desires. Corporations help structure and facilitate the activities of human beings, to be sure, and their ‘personhood’ often serves as a useful legal fiction. But they are not themselves members of ‘We the People’ by whom and for whom our Constitution was established.”
- “At bottom, the Court’s opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self-government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt.”
Anything else, Justice Stevens?
- “While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.”
But on the off chance that you were worried about the dearth of corporate money in the 2016 election – fear no more! In 2016, super PACs and corporate spending are alive and well. It’s only January, and they’ve already spent nearly four times the $42M spent by the candidate’s actual campaigns. Right to Rise USA, the super PAC supporting Jeb Bush, has alone spent $61M in advertisements thus far… only ten months to go, and Right to Rise had better get moving if it wants to keep up with the Koch network’s budget of almost $900M for the 2016 election.
Since Citizens United, voters (especially minorities and low-income citizens) have lost faith that their voices matter in comparison to those of big corporate donors. Some candidates have tried to respond – both Hillary Clinton and Bernie Sanders emphasize campaign finance reform as a major issue on their platforms, and they pledge to only appoint justices that would overturn Citizens United (because we all know how well predicting how justices will decide has gone in the past!).
However, backlash against Citizens United might play out in a different way this year. Sanders is becoming increasingly competitive with Clinton, as he capitalizes on the fact that he’s the candidate without a super PAC. Or, rather, one of the candidates without a super PAC. Because he’s not the only candidate who’s benefited from taking a stand against corporate donors…
The most confusing beneficiary of the Citizens United backlash may well be billionaire-turned-Republican front-runner Donald Trump. Trump has consistently said he can’t be influenced like his opponents because he’s “not taking special interest money” and is instead “self-funding his campaign” (note: he’s not actually self-funding his campaign), and some commentators suggest that, similar to Sanders, he’s racking up grassroots support as the Washington outsider candidate because voters are really that tired of corruption and influence.
To reiterate: some voters who are flustered by the influence of corporate money in elections have turned to Donald Trump for help. But don’t worry, because the Supreme Court told us that unlimited election spending by corporations won’t cause the electorate to lose faith in our democracy.