So, You Heard About Citizens United…

Alright friends, lets get down to business. Primary season is just around the corner and there’s some things we need to clarify. Over the next few days, I’m going to be talking about campaign finance — an issue people bring up a lot, but rarely know much about. Here it goes.

Part 1: What is Citizens United and How Does it Work?

In 2010, the Supreme Court ruled, in a 5-4 decision, that Citizens United won a case they brought against the Federal Election Commission. As you all likely know, this case was about campaign finance. What you might not know, is that it’s about a very specific part of campaign finance rules.

So lets break it down! (Get hyped, this will blow your mind.)

(Full disclosure, I am not a campaign finance lawyer, I have not even been to law school. However, I worked at the Federal Election Commission this summer for the chair and I have read the entire opinion and discussed it with people who are lawyers who know a lot about this subject.)

Election law is pretty complicated, so we’re going to focus on the specifics of this case. The main issue at hand was a section of the  Bipartisan Campaign Reform Act (BCRA) that banned corporate-funded independent expenditures. An independent expenditure is an when a money is spent on communications (like TV ads, fliers, postcards, etc.) that expressly advocate for a clearly identified candidate’s election or defeat. These communications may not be made in “cooperation, consultation, or consort, or at the request of suggestion of candidate,” the candidate’s campaign, or the people who work for it, or a political party, or the people who work for it. Basically, independent expenditures are expenditures made completely independently from the official campaign and are usually backed by corporations.

In a nut shell, the Court decided that banning corporate political speech all together was unconstitutional. What that means is that corporations, post summer 2010, were allowed to make independent expenditures in elections. This lead to the creation of groups whose sole purpose was to make independent expenditures. We call those groups independent expenditure only political action committees, or super PACs.

The biggest thing that differentiates a super PAC from an official campaign is that there is donation limit. A person can only donate $2,700 to an official campaign, and only individuals can donate. No corporations can donate to campaigns. So, when you hear candidates talk about how this corporation and that corporation have donated to their opponents campaign, that’s not what’s actually happening. Individuals who work for those corporations are donating directly to that campaign (more on this in a post coming soon!).

A corporation or foundation can donate as much as it wants to a super PAC, but the PAC still has to disclose its donors to the Federal Election Commission, who makes this data available to the public.

If you just wanted the nuts and bolts of it, stop reading now! But, if you want to be the talk of the town at cocktail parties (or your local Frat, for my young viewers) KEEP READING! It’s gunna get real.

Part 2: Is the Protection of all Political Speech a Price We Must Pay?

Buckle up folks, and get ready for a crazy ride! You just might rethink everything you thought to be true about money in politics. If only for a second.

Justice Kennedy argued in his majority opinion that political speech is the most valued type of speech in America, and that no one should be deprived of any kind of political speech, because all of it is valuable to the discussion. He argues that political speech is “central to the meaning and purpose of the First Amendment.” That means that Congress isn’t allowed to  inhibit speech, especially political speech, and that this protection extends to corporations. He writes, “political speech is indispensable to decision making in a democracy, and this is no less true because the speech comes from a corporation rather than an individual.”

That’s not even the best part!

Because the identity of the speaker is inconsequential to political speech, the “Government has an interest in equalizing the relative ability of individuals and groups to influence the outcome of elections.” It cannot use “censorship to control thought,” which is what it does by preventing corporations from speaking in elections. “This is unlawful. The First Amendment confirms the freedom to think for ourselves.” He continues, arguing that “no sufficient governmental interest justifies limits on the political speech of nonprofit or for-profit corporations.”

He also says….

Wait for it…

That “it is irrelevant for purposes of the First Amendment that corporate funds may ‘have little or no correlation to the public’s support for the corporation’s political ideas.'” He uses the famed Federalist No. 10 to support this argument, saying that the best way to prevent the rise of factions is to permit them all to speak and give the people the power to judge what is true and what is false.

It keeps going, but here comes the big finish….

The 5 majority Justices all agree that, “the appearance of influence or access [of corporate speakers] . . . will not cause the electorate to lose faith in our democracy.”


And there you have it. Citizens United v. The Federal Election Commission, broken down and summarized. See? It wasn’t that bad! Isn’t election law fun?? I certainly think so. Keep an eye out for next week’s post that explains where the money in the election is coming from!

But, before I leave you, I want to bring up the question that titles this section. Reflecting on theses arguments, which flow fairly logically, do you think that the protection of all political speech is a price we must pay for a functioning democracy?




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