Why Citizens United Has Nothing to Do With What Ails American Politics — the American Magazine
Citizens United is one of the most misunderstood Supreme Court decisions ever. It doesn’t stand for what many people say it does.
Take, for example, President Obama’s famous statement that the decision “reversed a century of law that I believe will open the floodgates for special interests—including foreign corporations—to spend without limit in our elections.” In one sentence, the former law professor made four errors of law.
First, Citizens United didn’t reverse a century of law. The president was referring to the Tillman Act of 1907, which prohibited corporate donations to candidates and parties. Citizens United didn’t touch that. Instead, the overturned precedent was a 1990 case that, for the first and only time, allowed a restriction on political speech based on something other than the appearance of corruption.
Second, the floodgates point depends on how you define those terms. As even the July 22 New York Times magazine reported, there’s no significant change in corporate spending this cycle. There are certainly people running Super PACs who would otherwise be supporting candidates directly, but Citizens United didn’t cause Super PACs (as I’ll explain shortly). And the rules affecting the wealthy individuals who are spending more haven’t changed at all. It’s unclear that any “floodgates” have opened or which special interests didn’t exist before.
Third, the rights of foreigners—corporate or otherwise—is another issue about which Citizens United said nothing. Indeed, just this year the Supreme Court summarily upheld the restrictions on foreign spending in political campaigns.
Fourth and finally, while independent spending on elections now has few limits, candidates and parties aren’t so lucky, and neither are their donors. Again, Citizens United didn’t affect laws regarding individual or corporate contributions to candidates.