Five Myths About Citizens United That Still Show Up in Stump Speeches

Picture a stump speech, a podium and a politician denouncing a Supreme Court decision for allowing something the decision did not allow. It is a hard thing to do, and a common one. The crowd cheers, and the decision goes on being misdescribed for another decade.

Citizens United v. FEC is the most misquoted case of our time. It is cited by people who have never read it, against positions it never took, for outcomes it did not cause. So let us read it. We will state each myth in the form its defenders would use, test it against the record, and give a verdict.

What the case was

First the facts, because they are not what the slogans suggest.

Citizens United is a nonprofit advocacy corporation. In 2008 it made a ninety-minute documentary critical of Senator Hillary Clinton, then a candidate for the Democratic presidential nomination, and wanted to offer it through video-on-demand. The Bipartisan Campaign Reform Act of 2002, known as McCain-Feingold, barred corporations and unions from using their general treasury funds on "electioneering communications," broadcasts naming a federal candidate within thirty days of a primary or sixty days of a general election. The Federal Election Commission said the film was covered. Citizens United sued.

The question, in short, was whether the government may prohibit a corporation from airing a film about a candidate because of who paid for it. On January 21, 2010, the Court held, 5 to 4, that it may not. Justice Anthony Kennedy wrote the opinion. It overruled Austin v. Michigan Chamber of Commerce (1990) and part of McConnell v. FEC (2003).

The First Amendment says "Congress shall make no law... abridging the freedom of speech, or of the press." The majority's reasoning was simple. Political speech is at the core of the First Amendment, and the government may not suppress speech because of the speaker's identity, including a speaker's corporate form.

Myth one: Citizens United invented corporate personhood

The claim: The Supreme Court decided that corporations are people.

The record: The Court did not decide anything of the kind in this case, and it was not the first to treat corporations as holders of legal rights. In Trustees of Dartmouth College v. Woodward (1819), Chief Justice Marshall held that the college's charter was a contract protected by the Constitution's Contracts Clause, and that a corporation could hold property and make contracts. The law of corporations goes back centuries before the Republic, when the Crown chartered companies.

More to the point, the argument in Citizens United did not depend on whether a corporation is a person. It depended on whether the First Amendment protects speech regardless of the speaker. The majority said that the Court has recognized First Amendment protection for corporations before, in cases like First National Bank of Boston v. Bellotti (1978). But the logic is about speech. The amendment's text speaks of "the freedom of speech, or of the press," and it does not limit that freedom to individuals.

Consider the practical result of the other view. The New York Times Company is a corporation. So is every other major newspaper and television network. If a corporation has no First Amendment rights, then Congress could regulate their editorials during an election. The majority pressed precisely this point. If Austin were correct, it wrote, the Government could prohibit a corporation from printing books. The opinion records that the Government answered that the FEC had never applied the statute to a book, and that if it did, there would be a good as-applied challenge. That is a thin reassurance for a free society.

Verdict: False. The case did not invent corporate personhood, and its holding does not depend on it. It held that speech does not lose protection because of its source.

Myth two: it allowed foreign money to flood American elections

The claim: After Citizens United, foreign governments and foreign corporations may spend freely to influence our elections.

The record: Federal law forbids it. A federal statute, now codified at 52 U.S.C. section 30121, bars foreign nationals from making contributions, donations or expenditures in connection with any federal, state or local election in the United States. It was on the books before Citizens United, and it remains on the books. The decision did not touch it. Citizens United is a domestic corporation, and the Court said in its opinion that it was not addressing whether the government has a compelling interest in limiting political spending by foreign individuals or associations.

Soon after, a challenge to the foreign-spending ban reached the courts. In Bluman v. FEC (2011), a three-judge district court, in an opinion by Judge Brett Kavanaugh, upheld the ban as applied to foreign nationals who were temporary residents. The Supreme Court affirmed without a written opinion in 2012.

There is a real policy discussion about whether foreign-owned domestic companies, or money routed through intermediaries, can slip through the cracks. That is an enforcement question, and the answer is better enforcement and clearer disclosure, not a belief that the law has gone away.

Verdict: False. The ban on foreign spending predates the case, survived it, and was upheld by the courts afterward.

Myth three: it allowed unlimited gifts to candidates

The claim: After the decision, a corporation or a billionaire can write a candidate a check for any amount.

The record: Not even close. Citizens United was about independent expenditures, spending that is not coordinated with a candidate's campaign: a film, an advertisement, a mailing. The decision did not touch the limits on contributions, the money given to candidates and parties. Those limits, which Congress adjusts and the FEC publishes, stayed in place. Corporations remain barred from contributing directly to federal candidates.

The distinction is older than the case. In Buckley v. Valeo (1976), the Court upheld limits on contributions, finding that they serve the government's interest in preventing quid pro quo corruption, while striking down limits on independent expenditures, which are pure speech. Citizens United applied Buckley's logic to corporations. It found that independent expenditures, by definition, are not coordinated with the candidate and so do not create the same risk of a bargain.

Here is where the critics do have a point worth stating fairly. They argue that independent spending can be nearly as valuable to a campaign as a contribution, and that a grateful officeholder may remember who helped. That concern is serious, and many thoughtful people hold it. The Court's answer was that gratitude and access are not the same as corruption, and that the First Amendment does not allow the government to ban speech on the theory that it might be well received. You are free to disagree with the answer. But it is a different thing from claiming the decision allowed bribery.

A later case from the lower courts, SpeechNow.org v. FEC (D.C. Cir. 2010), applied the logic and led to the creation of what are called super PACs: committees that may raise unlimited sums but may not give to candidates or coordinate with them. That is a consequence worth debating. It is not a legalization of gifts to candidates.

Verdict: False. Contribution limits remain. The case concerned independent spending.

Myth four: it ended disclosure

The claim: The decision let money into politics from secret sources, with no way to know who is paying.

The record: The Court upheld the disclosure and disclaimer requirements, and did so by a vote of 8 to 1. Only Justice Thomas dissented on that part. Kennedy's opinion held that disclosure is a less restrictive alternative to a ban on speech, and that it provides the electorate with information, helps voters evaluate the arguments, and lets citizens see whether elected officials are "in the pocket" of so-called moneyed interests, a phrase Kennedy borrowed from Justice Scalia's opinion in McConnell. The majority went so far as to say that transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.

So the Court said, in effect: you may not prohibit the speech, but you may require the speaker to put his name on it. Disclaimers on advertisements, saying who paid, were upheld, as was the requirement to report significant spending.

Whether the system has produced enough disclosure is a fair question. Money routed through nonprofit organizations that do not have to list donors is a loophole that critics on the left, and some on the right, complain about. But the loophole comes from the rules about which organizations must disclose, which Congress and the FEC write, and not from the case. Congress could tighten them tomorrow. The opinion invites it.

Verdict: False. The Court upheld disclosure 8 to 1 and treated it as the right answer to concerns about influence.

Myth five: it only helps big business

The claim: The decision is a gift to Wall Street, and ordinary people and unions have been shut out.

The record: The plaintiff was a nonprofit advocacy organization that drew most of its funds from individual donations. The opinion concerned the speech rights of corporations as a category, and the Court's logic applies to nonprofit corporations, to labor unions, and to the associations that ordinary citizens form to speak. Unions were covered by the same restrictions that the Court struck down. After the decision, unions could spend from general treasuries on independent expenditures, as corporations could.

The sort of group the law once restricted is the sort of group that has the least access to the media: a group of citizens who pool money to buy an ad. A wealthy individual could always spend his own money. A corporation owned by a media company could always run an editorial. The ban fell hardest on the middle: the nonprofit, the trade association, the local business. Look at the speech the pre-2010 rule actually stopped, a film about a candidate, and ask whether it was an abuse.

It is fair to say that large corporations have more resources than small ones, and that this matters in politics. It is also true that every form of political speech, from a newspaper to a pamphlet to a broadcast, costs money, and that those with more resources can speak more. The answer to that in a free country has never been to limit the speech of those who have means. It has been to encourage more speech, and to disclose who is speaking.

Verdict: Misleading. The ruling covers unions, nonprofits and advocacy groups, and the plaintiff itself was a nonprofit.

The best argument on the other side

Let us give the dissent its due. Justice Stevens, joined by Justices Ginsburg, Breyer and Sotomayor, wrote a long dissent that took a different view of corporations. He argued that corporations are not actually members of society, cannot vote or run for office, and that the Framers would not have understood the speech of a business corporation as the kind of speech the First Amendment protects. He feared that corporate spending would distort politics and drown out individual voices, and that the public would lose faith in the system.

This is not a trivial argument. The framers did have a distrust of concentrated, chartered power. And public confidence in elections matters.

The answers are these.

1. The First Amendment protects speech, not speakers. The text does not carve out categories of speakers. If the government may decide that some speakers have less right to speak, it will decide that people it dislikes have less right to speak.
2. Most corporations are not Exxon. Churches, universities, newspapers, advocacy groups, small businesses and unions are all organized as corporations or associations. A rule that bars corporate political speech bars all of them.
3. A rule against "distortion" is a rule that lets the government decide how much speech is enough. That is the premise of Austin, and the Court was right to reject it. The remedy for speech you dislike is more speech.
4. The remedy for corruption is to prosecute corruption. Bribery is a crime and remains one.

You may weigh those points differently, and in a free country you are entitled to. The point is that the disagreement is about the First Amendment, and not about the myths above.

Why the myths matter

False claims about a decision do damage in two directions. They make the decision's opponents argue against something it did not do, and they make its defenders look as though they are defending something worse than they are. A voter who believes the case allows foreign money, bribery and secret donors will think that anyone who defends it is for those things. That is no way to carry on a debate about speech.

A free people should be able to describe a decision accurately before they argue about it. That is the minimum standard of fairness, and it works in both directions: conservatives should also resist the myth that every campaign-finance rule is a plot to silence them.

For related reading, see Seven Myths About the Roberts Court, Tested Against Its Own Opinions, 303 Creative Was About Compelled Speech, Not a License to Refuse Customers, How the Press Covers Supreme Court Decisions, and What the Stories Leave Out and Ten Words the Press Uses About the Supreme Court, Translated for Normal People, which explain how decisions are covered and misdescribed. The structure of the Court's reasoning about the First Amendment is in Why Originalism Is the Only Method That Binds the Judge as Well as the Citizen, and the history of the Court correcting itself is in From Plessy to Chevron, a Timeline of Precedents the Court Was Right to Overrule. You can read the First Amendment on the Constitution page.

The case in brief

1. Citizens United held that the government may not ban independent political spending by corporations, and it overruled Austin on that point.
2. It did not invent corporate personhood, which dates to Dartmouth College in 1819, and its reasoning rests on speech rather than personhood.
3. It did not touch the ban on foreign spending or the limits on contributions to candidates, and it upheld disclosure by a vote of 8 to 1.
4. It applies to unions, nonprofits and advocacy groups, and the plaintiff was itself a nonprofit.
5. The real debate is about whether the First Amendment protects speech regardless of the speaker, and a fair argument starts from what the opinion actually held.

What you can do: look up a political advertisement's disclaimer and your State's campaign-finance disclosure site, and read who paid for the ads you saw last election.