Background
Campaign finance laws are controversial and highly influential in the American election system. Before 2010, Supreme Court rulings in Austin v. Michigan State Chamber of Commerce and McConnell v. FEC upheld regulations by the Federal Election Commission (FEC) that restricted organizational political expenditures and electioneering communications, such as political advertisements. However, in 2010, a landmark case Citizens United v. FEC overturned these restrictions. The Citizens United case arose when a nonprofit organization titled Citizens United attempted to air a documentary critical of Democratic primary candidate Hillary Clinton just before the 2008 primary election. Anticipating FEC penalties due to regulations on organizational electioneering, Citizens United sued the FEC and argued that the documentary did not constitute explicit advocacy against a candidate. The case made its way to the Supreme Court, where the Court overturned its previous campaign finance rulings entirely. The majority opinion held that limiting political expenditures and electioneering communications by collective entities such as corporations, unions, and some nonprofits violates the First Amendment right to free speech.
Arguments in Favor of the Court Decision
Defending Free Speech
Those in favor of the ruling in Citizens United v. FEC argue that regulating the spending of corporations and very wealthy individuals is the equivalent of regulating their rights to free speech and is therefore unconstitutional. Advocates argue that corporations represent the opinions of the individuals within the company and therefore should not be subject to different regulations than people.
Increasing Civic Engagement
In addition, supporters argue that heavy regulations on campaign finance would reduce the dissemination of information related to political candidates, effectively reducing civic engagement among voters. They argue that allowing unlimited corporate expenditures strengthens democracy by creating opportunities for the publication of more political content and information on candidates and their policies.
Anti-Corruption
Citizens United retained regulations that forbid coordination between corporations, nonprofits, PACs, and their favored candidates or campaigns. Thus, advocates argue that there is no greater risk of corruption under Citizens United v. FEC because the changes only serve to amplify the opinions of the masses and do not allow organizations to coordinate directly with political candidates. Supporters also argue that many corporations will not want to exercise their right to participate in politics financially. The Supreme Court agreed with this logic and determined that, although certain expenditures could curry favor with a candidate, “ingratiation and access are not corruption.”
Arguments Against the Court Decision
Corruption
Citizens United v. FEC allowed for the creation of Super PACs, or political action committees that may receive and spend unlimited funding from corporations, labor unions, people, and other PACs, as long as there is no formal coordination between the PACs and the candidate’s campaign. Critics of Citizens United disagree with the notion that the case’s safeguards against coordination are sufficient in preventing corruption, as there are apparent loopholes in the system. The most prominent of these are often referred to as “dark-money” groups — 501(c)(4) and 501(c)(6) nonprofits that are not required to disclose their donors and can contribute to super PACs. Critics argue that these non-profits endanger our democracy by opening a channel for anonymous financiers and foreign actors to influence our elections. They hold that deregulating campaign finance for anonymous corporations and individuals will create a top-heavy democracy benefitting the wealthiest few.
Difficulty Verifying Compliance
While the FEC regulation against coordination is crucial for preventing quid pro quo corruption, critics argue that it is difficult to verify that coordination has not occurred between a candidate, their team, and a backer. While direct communication is prohibited, using the same consultation group as a political candidate or allowing ex-staff to attend meetings and fundraisers for a super PAC is not. Therefore, critics claim there are loopholes that allow candidates to engage in strategic communication with financiers without technically “coordinating” under FEC regulations.
Reinforcing Racial Inequalities
Opponents of the Citizens United decision also note that campaign finance structures that allow big-money influence may contribute to racial bias and underrepresentation in the campaign system, since there is a disproportionate representation of white individuals in both corporate executive roles and the affluent class of large donors. Critics argue that the financial freedom instilled by Citizens United will grant greater power to affluent individuals to serve their own interests, reinforcing the economic insecurity that people of color experience at disproportionate rates.
What’s Next?
There’s no question that political campaigns are becoming increasingly expensive. The 2020 presidential election cost roughly $3.1 billion more than that of 2012, and the midterm election in 2022 cost roughly $8.9 billion, a $4 billion increase from the 2010 election. Opponents of Citizens United blame rising campaign costs on the deregulation of corporate finance, claiming the 2010 decision rendered the cost of running for office inaccessible to the average American, while proponents of the Citizen United decision attribute rising campaign costs to inflation. Currently, a significant debate over Citizens United and its central topics endures. Groups such as End Citizens United advocate for a complete reversal of the 2010 decision and push ballot measures to reform state campaign finance laws. Some lawmakers have also tried to pass campaign finance transparency laws, such as the DISCLOSE Act. The debate over Citizens United v. FEC, and campaign finance law more generally, will undoubtedly continue to shape the future of American democracy.
