Citizens United at 10: The American Experiment in Self-Government is Still Intact

by Benjamin Barr

Today we celebrate the tenth anniversary of the Supreme Court's ruling in Citizens United v. Federal Election Commission. You have probably heard a number of bad things about Citizens United, but its core truth is simple: groups of people are free to spend money for political speech.

Before Citizens United, corporations and unions—everything from mom and pop barber shops to the Boys and Girls Club to Exxon to the Steelworkers union representing Exxon employees—were prohibited from spending money to influence elections. Pause for a moment to consider this proposition. Government entrusted itself with the power to decide who among us may speak about politics.

As with most things in the law, the wealthy and connected had ways around this prohibition. They could set up connected political action committees or carefully monitor speech their corporation distributed to fall just outside the law. But average joes, the barber, the local non-profit, the gun club, couldn't be expected to hire beltway election law attorneys to sort this all out. They just remained silent.

Sure, the FEC argued at the time that if you followed its two-part, 11-factor test, your speech just might be protected. For clearer protection, you would also need to consult over 560 pages of regulations, more than 1,270 pages explaining those regulations, and over 1,770 pages of advisory opinions further interpreting those eleven factors. Again, this kind of regulatory nonsense favored the wealthy and politically connected and made political speech difficult for most Americans. But because campaign finance reform is usually clothed in emotional hyperbole ("Clean Elections Now!"), these kinds of facts are rarely discussed.

Since the ruling, legacy media and the usual pundits have been consistent in their scorn and sky-is-falling predictions. Even President Obama warned that the Court had "given a green light to special interest money in our politics." At Citizens United two-year anniversary, The Atlantic warned that America should not "trust corporate political spending." In the past ten years, plenty of so-called legislative fixes have sprung up, only to meet failure. This has even included calls to revamp the First Amendment itself. The effect of most of these is simple—a reduction in the amount of information available to the electorate and a silencing of voices.

The animus toward Citizens United is consistent with the themes supporting rigorous campaign finance reform. At its base, campaign finance law makes a few dangerous assumptions and tinkers with core concepts of American self-governance. Campaign finance reform is usually paternalistic and assumes that individuals should not be trusted with large amounts of information. The popular argument, so it goes, is that if the Koch Brothers or Exxon spend millions supporting a candidate or issue, then people have little choice but to follow their lead in slovenly fashion. Creating laws to "balance the playing field," we are told will ensure that just the right balance of support will occur across the economic and ideological divides of America. The same folks who run the Post Office and IRS will, with beneficent wisdom, be able to distill what the right amount of political engagement is for the American people.

No doubt, money is important where all other variables are equal. But unpopular candidates flush with funding or outside support routinely lose. Consider the Jeb Bush 2016 super PAC, "Right to Rise," which raised some $118 million, but whose candidate proved lackluster. Or consider wrestling executive Linda McMahon, who spent close to some $100 million to run twice for the Senate in Connecticut, only to be spurned by the state's voters. While well-funded candidates routinely lose, reformers continue to insist that money is inherently corrupting.

Attacks couched in wealth-envy are common against political spending, but they ignore the fact that Super PACs, citizen groups, corporations, and candidates produce helpful information for Americans to decide the course of their nation. When it comes to the First Amendment, our founders could not have been clearer that this sort of engagement is protected at its very core. Attempts to micromanage speech or reduce the amount of information available simply fail when measured against our commitment to open and robust debate.

Proponents of campaign finance reform also indulge in a form of dangerous paternalism. Key to the functioning of a free society is the presence of engaged, non-apathetic voters. That is, voters who spend time educating themselves about issues and who spend more time and money engaging in civic life rather than leveling up in popular video games or studying intricate sports statistics.

Many of us may be upset at how ill-informed American voters are or how apathetic they may appear. But imposing laws with criminal consequences for sharing political information or engaging the public in a manner that bureaucrats don't care for is lazy and ineffective. The political sphere allows individuals to give public shape to the values that they believe represent the true and the good. Creating laws that cripple citizens' abilities to give shape to these values destroys the very underpinning of our nation. That, above all, is the real meaning of Citizens United.

Benjamin Barr is a partner with Barr & Klein PLLC. He represents the Wyoming Liberty Group in a number of constitutional matters and has written studies on constitutional issues unique to Wyoming. The United States Supreme Court favorably cited his amicus brief in Citizens United v. FEC in favor of the First Amendment.