What’s the Real Legacy of Citizens United?

In the run-up to the 10-year anniversary of the Supreme Court’s decision in Citizens United v FEC, law professor Richard Hasen wrote a thorough article for Slate that concluded “the decade of Citizens United has been a bad one for democracy.”

But in a surprise twist, spending by presidential campaigns has actually decreased since the Supreme Court’s landmark First Amendment decision and the side that spent less won in 2016. So perhaps the better question 10 years on is, did Citizens United matter?

The history of the case is pretty straightforward. Citizens United, a non-profit corporation, produced a film called Hillary: The Movie ahead of the 2008 primary. It was a highly critical documentary, and federal law at the time prohibited corporations and unions—with a notable exemption for media corporations—“from using general treasury funds to make direct contributions to candidates or independent expenditures that expressly advocate the election or defeat of a candidate.” 

The case reached the Supreme Court two years later, and on January 21, 2010, Justice Kennedy, writing for the majority, held that the government cannot prohibit individuals or corporations from independently expressing their opinions on candidates and elections, which included contributing money for that speech. He noted that “governments are often hostile to speech, but under our law and our tradition it seems stranger than fiction for our Government to make this political speech a crime” and that “when Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought.”