The Modern Implications of Citizens United: Granting Corporations Legal Personhood

In 2010, Citizens United v. Federal Elections Commission ruled that corporations, unions, and other related entities fall under the free speech protection of the First Amendment—establishing the precedent that these entities can make campaign contributions and endorse specific candidates. Opponents claim that this ruling allows companies to funnel disproportionate sums of money into campaigns, promoting the practice that corporations can essentially “buy” American elections. Mere hours after the decision passed, President Barack Obama stated that the ruling “gives the special interests and their lobbyists even more power in Washington—while undermining the influence of average Americans who make small contributions to support their preferred candidates.”[1] Hillary Clinton and Bernie Sanders, the leading Democratic presidential candidates in the 2016 election, both promised to appoint Supreme Court justices who would strive to repeal Citizens United.[2] However, due to the current leaning of the Court, this repeal seems unlikely, as Citizens United continues to impact recent Supreme Court rulings regarding campaign funding and allows for corporations’ weighty and unchecked influence on modern elections.

SpeechNow v. Federal Election Commission concerned the legality of the practices by an independent organization called SpeechNow, that did not file as a political committee yet only accepted contributions to support its preferred federal candidates. SpeechNow asked the Federal Election Commission (FEC) whether it would have to register as a political committee under the Federal Election Campaign Act, due to fundraising from individuals for the exclusive purpose of advocacy in federal elections. The FEC responded that it would have to register as a political committee once it gained contributions above the Act’s contribution limit and thus become subject to the Act.[3] SpeechNow argued that the Act violated individual contributors’ First Amendment right to free speech by limiting how much they could contribute to SpeechNow and the amount SpeechNow could spend.[4] In 2010, the U.S. District Court for the District of Columbia entered final judgment in favor of SpeechNow.[5] Similarly to this case, in Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, an Arizona campaign law that matched publicly-funded candidates’ contributions with those of privately-funded candidates’ contributions was ruled unconstitutional by the Supreme Court.[6] In delivering the majority opinion, Justice Roberts explained that the law “substantially burdens political speech and is not sufficiently justified by a compelling interest to survive First Amendment scrutiny.”[7]

In addition to these related cases, cases have also explicitly cited Citizens United, directly drawing from its legal precedent. For example, American Tradition Partnership sued the Attorney General of Montana over a state law barring corporations from contributing to individuals or political committees, arguing that the law limited one’s First Amendment right to free speech. The Supreme Court ruled in favor of American Tradition Partnership in American Tradition Partnership, Inc. v. Bullock, drawing from the arguments in the Citizens United ruling.[8] However, the dissenting opinion written by Justices Breyer, Ginsburg, Sotomayor, and Kagan also underscored how these judges disagreed with drawing from the Citizens United ruling;[9][10] for as Justice Breyer wrote, “Were the matter up to me, I would vote to grant the petition for certiorari in order to reconsider Citizens United.”[11]

Citizens United also established the understanding that corporations have the right to be treated as a person and thus significantly impacted the Supreme Court’s decision in Burwell v. Hobby Lobby Stores, Inc. The same conceptualization of a corporation’s legal personhood that granted corporations the right free speech was extended to grant corporations the right to religious freedom, with Justice Alito writing, “Congress intended for the Religious Freedom Restoration Act (RFRA) to be read as applying to corporations since they are composed of individuals who use them to achieve desired ends.”[12] Hobby Lobby Stores faced backlash similar to Citizens United because it allowed for a corporation to impose its religious views onto its employees, as the corporation had been granted legal personhood and could claim protection from birth control requirements on religious grounds. The concurring opinion declared that since the government had failed to show that “there was a meaningful difference between non-profit religious institutions and for-profit religious corporations under the RFRA,” for-profit corporations must be treated the same as non-profit institutions.[13] Hobby Lobby Stores extended upon the original principles solidified in Citizens United—the personhood of corporations—with the granting of religious freedom rights and the broadening scope to protect both for-profit and non-profit institutions.

Aside from its impact in the courts, the Citizens United ruling has also had widespread political ramifications. Historically, since 1944, political action committees (PACs) have allowed for special interest groups to receive donations for their campaign. However, in the beginning of the practices, PACs had to abide by specific financial restrictions: corporations could not contribute and the total donation amounts could not exceed $5,000 per candidate or $15,000 per national party.[14] With the recent Citizens United ruling, these limitations have been repealed—opening the door for unlimited contributions from corporations and the increased influence of super PACs. According to the Center for Responsive Politics, super PACs have spent more than $1 billion over the past three election cycles since their creation.[15] Though super PACs are legally “independent expenditure-only committees,” meaning that their spending should be independent from a candidate, these large monetary contributions have given super PACs the power to change the course of even presidential races.[16]

Thus, what can be done, if anything, to change Citizens United’s unjust precedent? With the addition of Neil Gorsuch to the Supreme Court, a repeal is unlikely in the coming years, as the court is unwilling to quickly overturn its precedent. However, one means of change would be to enact a constitutional amendment. Since 2010, more than a dozen constitutional amendments have been proposed to Congress but unfortunately to no avail.[17] With Constitutional amendments few and far between, the next likely pathway to a Citizens United repeal is through the states. Encouraging campaign-finance initiatives are already underway, with citizens and policymakers joining efforts at the state and local level.[18] For instance, The Atlantic reports, “Maine, Connecticut, Arizona, Seattle, and New York City have each adopted generous public-financing schemes to reduce the influence of private wealth.” In New York, the policy is to “match small donations six-to-one for those candidates who agree to contribution and spending limits.”[19] If these movements can garner further publicity and attention in the coming years, the federal government will hopefully be forced to take notice and take action to repeal Citizens United and limit corporations’ undue influence in the most fundamental process of our democracy: elections.

[1] James, Frank. “Obama Slams Supreme Court Campaign Money Ruling,” National Public Radio (2010). Accessed 11 April 2018, https://www.npr.org/sections/thetwo-way/2010/01/obama_slams_supreme_court_camp.html.

[2] Overby, Peter. “Fact Check: Hillary Clinton And Bernie Sanders on Campaign Finance,” National Public Radio (2016). Accessed 11 April 2018, https://www.npr.org/2016/02/06/465781632/fact-check-clinton-and-sanders-on-campaign-finance.

[3] “SpeechNow.org v. FEC Case Summary,” Federal Election Commission. Accessed 9 April 2018, https://transition.fec.gov/law/litigation/speechnow.shtml#summary.

[4] Ibid.

[5] Ibid.

[6] “Arizona Free Enterprise Club's Freedom Club PAC v. Bennett,” Oyez.org. Accessed 10 April 2018, https://www.oyez.org/cases/2010/10-238.

[7] Ibid.

[8] “American Tradition Partnership, Inc. v. Bullock,” Oyez.org. Accessed 10 April 2018, https://www.oyez.org/cases/2011/11-1179.

[9] Ibid.

[10] “American Tradition Partnership, Inc. v. Bullock,” Federal Election Commission. Accessed 24 April 2018, https://www.fec.gov/updates/american-tradition-partnership-inc-v-bullock/.

[11] American Tradition Partnership, Inc., FKA Western Tradition Partnership, Inc., et. al. v. Steve Bullock, Attorney General of Montana, et. al 567 U.S., 2 (2012).

[12] “Burwell v. Hobby Lobby Stores Inc.,” Oyez.org. Accessed 19 April 2018, https://www.oyez.org/cases/2013/13-354.

[13] Ibid.

[14] “What is a PAC?,” Center for Responsive Politics. Accessed 26 April 2018, https://www.opensecrets.org/pacs/pacfaq.php.

[15] “Super PACS,” Center for Responsive Politics. Accessed 26 April 2018, https://www.opensecrets.org/pacs/superpacs.php.

[16] Overby, Peter. “5 Years After ‘Citizens United,’ Super PACS Continue to Grow,” National Public Radio (2015). Accessed 26 April 2018, https://www.npr.org/2015/01/13/377024687/five-years-after-citizens-united-superpacs-continue-to-grow.

[17] “A constitutional amendment to reverse Citizens United?,” Politico (2012). Accessed 26 April 2018, https://www.politico.com/arena/archive/a-constitutional-amendment-to-reverse-citizens-united.html.

[18] Cole, David. “How to Reverse Citizens United v. Federal Election Commission” The Atlantic (2016). Accessed 24 April 2018, https://www.theatlantic.com/magazine/archive/2016/04/how-to-reverse-citizens-united/471504/.

[19] Ibid.