Citizens United After Five Years

January 22, 2015
posted by Bob Bauer

The five year anniversary of Citizens United finds critics largely where they stood when the opinion as first issued. Enthusiasts remain cheered and critics have lost none of their gloom. One difference is that time has passed and the inquiry has shifted from predictions about what CU will have wrought to claims about what the data shows about its effects. There is no agreement here, either, and any one analyst’s interpretation of data typically corresponds closely with her heartfelt views of the decision’s rightness or wrongness. Like most campaign finance debates, this one does not change minds.   We are in for endless and inconclusive argument about CU’s contribution to oligarchic rule, or its responsibility for “dark money, or for trends identified in the volume of money spent in politics.

These “big picture” disputes may block a clear view of other, more subtle but still significant changes in campaign finance doctrine and practice brought about or encouraged by CU. These are changes that can’t be precisely pinned to CU alone: the whole course of campaign finance doctrinal development was driven, principally by Buckley, in particular directions, and CU, after all, is an “independent expenditure” case the logic of which rests in the main on the 1976 case. But CU as a case about independent corporate spending, and about campaign finance regulation more generally, occupies a special, prominent place in this history, and it is in this context that it might be best understood.

Jurisprudence. Three aspects of the decision stand out as having the most impact over the long-term on the constitutional law in this area:

First, the Court adopted an uncompromising position on the protection to be afforded “independent” spending. If the spending for a communication is independent, then that is the end of story: no dollar limits. The Court cannot be charged with being entirely naïve about the implications of its adoption of a broad conception of independence. it was speaking in part about corporations with sophisticated political operations that include regular interactions with candidates. One of the points on which it was pressed was that corporations do have PACs and should have to funnel their political programs through them, using fully disclosed individual executive contributions. But, as it did later in different fashion in the Arizona public financing case, the Court held firm that a communication made by anyone independently of a candidate cannot be limited in amount.

This is another way to grasp the Court’s insistence that the identity of the speaker should not matter to the constitutional standing of the speech. Rick Hasen has sharply questioned the Court’s position on this issue of “identity”: the Justices’ does not hold up, he argues, because they declined to apply this principle to the speech of foreign nationals when presented with the opportunity. But the Court was also responding to the claim that corporations are too powerful, their resources too plentiful, to be given free rein with “independent speech”, because of the vastly greater potential for corruption if they could spend freely on elections. The Court answered by putting its chips on Buckley: the “independence” of the spending from candidate control would be assurance enough that the speech would not result in the prophesized evils.

Second, the Court brushed off the argument that the Court had other outlets for its speech—a PAC, whose expenses it could pay. In this respect, the Buckley Court was open to the suggestion that the effect of restrictive legislation could be mitigated by o reconfiguring its speech, or scaling it down. The CU Court took a sharp turn away from this line of reasoning—dramatically so, in a case involving corporate political action so long defined by the PAC option. We have seen just in the last few days the Court’s skepticism about a defense of free speech limits by appeal to other outlets in the Williams-Yulee judicial campaign finance case.

Third, the CU Court put considerable emphasis on the heavy burdens on speech caused by the very complexity of the campaign laws. The Court referred to the FEC’s function in derisive firms, likening it to a licensing power exercised in 16th and 17th century England, and there was also discussion of the First Amendment injury virtually inherent in a statutory scheme that left political actors with no choices but to hire lawyers. In this sense, CU is more than a case about corporate political action: it is a summa from the Court majority about the constitutional lessons to be drawn from 40 years of campaign finance regulation.


The impact of CU has varied with the type of corporations, profit or nonprofit, being discussed. For nonprofits, CU is a blessing. It relieves them of the need to meet the criteria for “qualified nonprofits” permitted to use their funds to make independent expenditures. It offers safe haven to individuals who, rather than spending for ads with a tagline identifying them as the funder, can give to a nonprofit for independent expenditures without being named in public financial reporting.

For business corporations, about which there was the most anxious speculation, CU has not so far invited a flood of spending (not there has been none at all). The reasons given have included the preference of such companies to keep their head down and resist inflaming customers or shareholders.

But there is another benefit from CU that may be less visible but for many business organizations may prove, in their day to day activity, the most advantageous. CU did not only end the ban on corporate spending; it brought into question other limits on corporations’ use of their resources to helping favored candidates. These limits include the “facilitation” rules. 11 C.F.R. § 114.9 These rules have limited the use of company assets, such as staff, facilities and other resources, to engage in fundraising activity for candidates, even where the assistance can be provided without directly engaging the candidate. An example is a company’s use of its staff and other facilities to solicit others to contribute to a campaign. It is an activity that fits neatly into a regular program of campaign activity and is just effective enough to raise the political visibility of the company and its interests. In short, it is just enough to supplement the larger and more consequential spending on direct lobbying. Companies with PAC can engage in this additional avenue of fundraising to enlarge the support they provide beyond the limited PAC contribution. Other companies preferring to operate without PACs make their political presence known without them.

The facilitation rules are an example of corporate limits other than advertising that CU has undermined. So far they remain on the books, and many companies are loathe to re-examine their compliance program in the light of CU without further clarity from the FEC or through other legal developments. But eventually it may become clear that Citizens United made a difference that does now show in ads bought or large sums spent—a difference in the flexibility companies have to support their government relations programs, their lobbying, with just enough spending to help candidates.

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