A Harmed Land: Limiting Free Speech After Citizens United v. FEC

By Noah Killeen ‘27

The 2012 election wasn't merely determined by campaign promises and ideals, but rather by the candidate who secured the greatest financial backing from those with the deepest pockets. The election, in which Barack Obama was the Democratic nominee and Mitt Romney was the Republican nominee, relied on millions of dollars spent by corporations to fuel their campaigns. Rather than the usual race to the polls, it was a race to the bank. Both candidates were funded by large political action committees, commonly known as Super-PACs, which contributed substantial funds to their campaigns. Funding then-Senator Barack Obama was Priorities USA Action, which raised approximately $64 million to ensure the Democrat’s success in the election. (1) Mitt Romney, meanwhile, was backed by Restore Our Future, a Super-PAC that raised over $130 million for the candidate and accounted for 20% of all Super-PAC dollars received by Romney’s campaign. (2) Such contributions would not have been possible a mere two years ago but due to the Citizens United v. The Federal Elections Commission (FEC) ruling in 2010, corporations’ and unions’ donations to Super-PACs were seen as a protected form of speech under the First Amendment. This ruling essentially paved the path for money to exert undue influence on modern-day elections. 

Super-PAC contributions are utilized for television advertisements supporting or opposing a candidate, and these ads can have significant sway on public opinion. With both Romney's and Obama's campaigns receiving at most 34% of their funding from individuals who gave $200 or less, it quickly became apparent that the direction of the 2012 election cycle was determined by a specific subset of America’s population: affluent individuals and corporations. (3) In the 2012 election, the influence of corporate money, bolstered by the Citizens United v. FEC ruling, reshaped the election process, making it evident that financial backing from affluent individuals and corporations played a pivotal role in determining the outcome — highlighting the broader implications of money's excessive influence on modern-day elections.

In 2010, the U.S. Supreme Court ruled  5-4  in Citizens United v. FEC that laws preventing corporations from utilizing their general treasury funds for political advertisements are a violation of their First Amendment rights. (4) Believing that individuals and corporations should have the right to utilize their money in the ways they see fit, the Supreme Court suggested that limiting how funds are utilized is an infringement on a corporation’s freedom of expression. However, this ruling opened the gateway to funds taking control over campaigns, like in the case of the 2012 election, where Super PACs dominated campaign fundraising. Nevertheless, this decision was not unanimous, and in the dissenting opinion for Citizens United vs FEC, it was argued that limitations in place offer a “leveled playing field” in elections. 

The dissenting opinion of the Citizens United ruling, led by Justice John Paul Stevens, suggested that the framework of the Constitution implies that corporations aren’t necessarily people, so therefore they aren’t protected under the First Amendment. (5) The court rejected this belief while still standing firm on the notion that independent fundraising is a right protected under the First Amendment. By limiting the impact of small donations to campaigns, the court has in turn restricted individual freedoms. For example, the Super-PACs receive only 6% of their total donations from donors providing $200 or less. (6) This means that the majority of the funds a Super-PAC receives come from those with enough expendable income to contribute more than two hundred dollars —the wealthiest members of society. In fact, 68% of Super-PAC funding comes from donors donating more than one million dollars. (7) Since such donations are unrealistic for the majority of most Americans, it is apparent that the largest portion of the contributors to Super-PACs, and therefore, the majority of sponsors behind candidates, are from affluent households. When considering the 2012 election, the same trend applies where donors who donated $200 or less accounted for 34% of Obama’s campaign funds  and only 18% of Romney’s. (8) With so few of the candidates' funds being from small contributors, it becomes evident that the candidates running for the highest office rely on corporations and individuals with the deepest pockets rather than the working class’s small contributions. 

The ruling in Citizens United vs. FEC overturned Austin vs. Michigan Chamber of Commerce (1990), which ruled that organizations cannot use their general treasury for the support or opposition of political candidates. The 2010 ruling also partially overturned McConnell vs. FEC (2003) which suggested that restrictions on campaign fundraising were necessary to ensure the country’s largest elections didn’t fall victim to monetary corruption. However, the court argued in Citizens United v. FEC that without there being a direct correlation between the use of campaign funds and corruption, the restrictions aren’t reasonable. This presents a dramatic shift in the Supreme Court’s beliefs as they began to prioritize the principles of free speech and expression over safeguarding against corruption. (9)

The interpretation of the First Amendment in the majority opinion in Citizens United vs. FEC which protects Super-PAC’s ability to contribute to campaigns under the right of “free speech,” has often been criticized as being too broad in its application. Opponents claim that providing corporations with such protection paves the path for elections to become commodities bought and sold to the public by businesses rather than a democratic process funded by individuals. With the Citizens United ruling, individual privileges such as small contributions that have a lasting impact on elections were stripped from working-class Americans and granted to the Super PACs with the most influence. 

The ruling resulted in an eruption of campaign spending from larger corporations as labor unions and organizations began utilizing their general treasury to finance independent contributions in campaigns. (10) In March of 2010, in the case of SpeakNow.org vs FEC, the organization, SpeechNow.org, used the ruling in Citizens United as evidence of their ability to raise campaign funds independently. Labeling themselves as a “Super-PAC,” they utilized the ruling in Citizens United as the basis of their argument for why they are constitutionally allowed to utilize their contributions in elections. The court sided with them, ruling that corporations maintain the power to raise an infinite amount of funds from individuals. (11) With this protection, corporations possess the ability to not only receive unrestricted funds from wealthy donors, but they can also utilize these funds to launch expensive campaigns. For example, in the 2016 election, super-PACS contributed nearly $25 million towards television advertisements for both candidates. (12) With this type of influence on campaigns, it is evident that Super-PACs hold the most value in deciding the outcome of multiple elections as they ensure which candidates are financially supported in their campaigns.

While Super-PACs control the vast majority of the monetary funds for elections, there also is an increased focus on how racial disparities influence elections. Although the majority of individual contributions to Super-PACs are anonymous and can’t be traced, it is understood that a large portion of Super-PAC funding comes from individual contributors donating directly to the corporation or donating to nonprofits that then donate to Super-PACs. (13) With the top 1% of earners being more than 90% white, and contributions that exceed $200 in the 2012 election being from predominantly white neighborhoods, these households control the majority of campaign finances and Super-PAC spending capabilities. (14) With these funds having such a grip on the elections, it excludes the possibility of contributions from minority households having an equitable influence on the scale of election funds. This unequal distribution of funds can lead to a disproportionate impact by white households on election fundraising, which can have serious implications for the representation of minority populations in the political process. Essentially, white households exert influence over political outcomes by wielding Super-PAC donations for television advertising, launching negative campaigns against political candidates or ideals, and promoting party agendas through control of mainstream media.

As the Supreme Court continues deciding the balance between the expansion of First Amendment rights and an individual’s impact on elections, it is important to recognize the power of capital in influencing political outcomes. Without media advertisements or promotional material, a candidate is severely restricted in how they spread their ideals, hindering their ability to mobilize voters. If they don’t have the campaign funds to promote their content, candidates will not garner the attention or support necessary to gain office. Super-PACs, however, have the power to donate millions of dollars to candidates and consequently serve to ensure that the spotlight shines on the candidate who receives the most donations. Regardless of one’s opinion on the ruling in Citizens United v. FEC,  it should be understood that there remains an imbalance between First Amendment protections and the usage of contributions in swaying elections.

Endnotes

(1) Choma, Russ Choma, and Michael Beckel, “Super Pacs, Nonprofits Favored Romney over Obama,” Center for Public Integrity, January 28, 2022. 

(2) Id.

(3) Id.

(4) “Citizens United v. Federal Election Commission,” Encyclopædia Britannica, September 18, 2023.

(5) Citizens United v. FEC, 558 U.S. 310 (2010).” Justia Law. Accessed October 31, 2023. 

(6) “A Decade of Super-PACs,” Brennan Center for Justice, December 12, 2019.

(7) Id.

(8) Choma, Russ Choma, and Michael Beckel, “Super Pacs, Nonprofits Favored Romney over Obama,” Center for Public Integrity, January 28, 2022. 

(9) Id.

(10) Dwyre, Diana., “The Origin and Evolution of Super Pacs: A Darwinian Examination of a Campaign Finance Species - Society,” SpringerLink, October 29, 2020.

(11) “Speechnow.Org v. FEC,” FEC.gov, Accessed October 31, 2023. 

(12) “PACS and Super Pacs: The Key to Election Advertising,” Mediaradar, March 2, 2020. 

(13) Dwyre, Diana, “The Origin and Evolution of Super Pacs: A Darwinian Examination of a Campaign Finance Species - Society.” SpringerLink, October 29, 2020.

(14) “Stacked Deck: How the Racial Bias in Our Big Money Political System Undermines Our Democracy and Our Economy,” Demos, Accessed October 31, 2023.