The Supreme Court’s 2010 ruling in Citizens United v. Federal Election Commission was a controversial decision reversing long-standing campaign finance restrictions and enabled corporations and other outside groups to spend virtually unlimited money to influence elections.[1] Many observers believe that Citizens United has contributed to a vast increase in the capacity of private and corporate contributions to influence national elections. Others believe that some of the corruption of government and the loss of faith in our institutions can be traced to Citizens United.
In Citizens United, the United States Supreme Court revisited two prior decisions, Austin v. Michigan Chamber of Commerce and McConnell v. Federal Election Commission.[2] Prior to Citizens United, corporations and labor were prohibited from using general treasury funds to make direct contributions to candidates or to make independent expenditures that expressly advocated the election or defeat of a particular candidate through any form of media.[3]
Citizens United arose in 2007 when a conservative nonprofit organization challenged campaign finance rules that stopped it from promoting and airing a film criticizing then-presidential candidate Hillary Clinton. A part of the film’s distribution was funded by corporate contributions. The District Court denied Citizens United’s motion for a preliminary injunction on the grounds that prior law prohibited corporations from making such contributions.
The Supreme Court narrowly held that Citizens United had First Amendment rights to spend its money to disseminate the film. In so doing, the Court struck down century-old prohibitions on corporate “independent” spending — money that doesn’t go directly to a candidate or party. This applied to labor unions as well.[4] The end result of Citizens United was to invalidate almost all fundraising and spending restrictions for groups that purport to be separate from candidates, many of which are today known as “super PACs.” The result has been a vast increase in the influence of wealth on American political decision-making.
Prior to Citizens United, while the Court recognized that the First Amendment applied to corporations in certain circumstances, it also recognized that the danger of corruption justified campaign finance restrictions on corporations.[5] In Citizens United, the Court held that “Although the First Amendment provides that ‘Congress shall make no law . . . abridging the freedom of speech,’ §441b’s prohibition on corporate independent expenditures is an outright ban on speech, backed by criminal sanctions. It is a ban notwithstanding the fact that a PAC created by a corporation can still speak, for a PAC is a separate association from the corporation. Because speech is an essential mechanism of democracy—it is the means to hold officials accountable to the people—political speech must prevail against laws that would suppress it by design or inadvertence.”[6]
I believe Citizens United was unsound and rested on weak or perhaps more properly Machiavellian First Amendment arguments. It’s important to remember that corporations and wealthy individuals shouldn’t have the power to spend unlimited amounts of money to sway public decisions. Instead, we need to put stricter rules in place to limit the influence of wealth in our democracy. One example is the extent to which, in Texas, candidates with little or no political experience have been funded almost entirely by wealthy out-of-state interests. This should not be possible. Finally, in Citizens United, the Court once again substituted its judgment for that of Congress, which is elected to make such decisions, a dubious exercise of judicial power.[7]
The First Amendment
To understand Citizens United, it is important to look at the First Amendment itself, which provides that:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. [8]
As to speech, the First Amendment protects five basic liberties: (i) freedom of religion, (ii) freedom of speech, (iii) freedom of the press, (iv) freedom of assembly, and (v) freedom to petition the government to redress grievances against it. These were the guarantees that the Anti-Federalists complained were notably absent from the new Constitution. None of these rights is absolute. For example, even though freedom of speech is protected, there is no right to incite a riot.[9]Nevertheless, freedom of speech is an important right under our Constitution.
Thus, as Citizens United notes, the “right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it.”[10] However, a basic question arises as to what constitutes citizenship sufficient to warrant protection and whether giving money a form of protected speech. The Court relies upon a long line of cases to support its argument that corporations have constitutional rights.[11] The fact that corporations have certain rights under US law does not mean that they should have constitutional rights under the First Amendment that are not there. For example, no one doubts that press corporations have some protections under the freedom of the press clause.[12] Finally, giving money should not in any case be considered speech. The First Amendment was designed to protect political speech, not the right to make campaign contributions.
Justice Stevens, in his dissent, makes the following point:
The Framers thus took it as a given that corporations could be comprehensively regulated in the service of the public welfare. The Framers thus took it as a given that corporations could be comprehensively regulated in the service of the public welfare. Unlike our colleagues, they had little trouble distinguishing corporations from human beings, and when they constitutionalized the right to free speech in the First Amendment, it was the free speech of individual Americans that they had in mind.[13]
The First Amendment was designed to protect human speech, not corporate campaign contributions. Furthermore, the founders would have taken for granted that state legislatures and Congress could give or restrict any kind of activities by corporations. There is simply no possibility that the founders believed corporations have any inherent right to speak, for they cannot speak without human actors. Thus,
“As a matter of original expectations, then, it seems absurd to think that the First Amendment prohibits legislatures from taking into account the corporate identity of a sponsor of electoral advocacy.”[14]
What the corporate form can do is amplify the power of the human actors who happen to control the corporate entity. This is exactly what reasonable legislation restricts.[15] Justice Stevens does not think (and I agree) that the majority is correct in concluding that the First Amendment protects corporations from reasonable restrictions, including campaign finance restrictions.
Conclusion
I don’t think there’s any doubt that Citizens United created a distortion in the American political system. Since the case was decided, the role of money in politics has increased exponentially. It is widely felt that congressmen spend most of their time raising money, and that money is used to purchase political favors from the corporations and individuals that give it. It should be obvious that, in my view, campaign contributions are not a form of speech. They’re not part of the political debate, and they should not be exempt from reasonable regulation. Perhaps more importantly, and this is where I need to say it, I don’t think the Constitution gives any kind of unrestricted right to campaign contributions, not to corporations and not to individuals. Our political system is being distorted by the ability of wealthy corporations and individuals to donate unlimited amounts of money nationwide.
Major donors have a resident of some city, county, and states. I believe they should be able to contribute to local and statewide elections in their domicile. They shouldn’t be allowed to donate money outside the places where they live, especially at a local level. U.S. citizens should have the right to support national candidates, such as the President and Vice President, but they shouldn’t influence who other states elect.
If they are granted rights to make contributions under state law, the same applies to corporations: having an office in a state shouldn’t necessarily give them the right to donate money there. Under Citizens United, the very wealthy and corporations have the right to influence elections nationally—and increasingly, we see foreign actors taking advantage of our misguided laws. This reality deeply distorts our political system. The Constitution was created to protect its human citizens, not corporations formed under state law. It also aims to safeguard people’s political speech. (I’ll discuss concerns about the press in a different blog.)
I have little hope that my views will prevail, but I think I am correct. However, I give the final word to President Theodore Roosevelt, in his 1905 annual message to Congress, as quoted by Justice Stevens:
All contributions by corporations to any political committee or for any political purpose should be forbidden by law; directors should not be permitted to use stockholders’ money for such purposes; and, moreover, a prohibition of this kind would be, as far as it went, an effective method of stopping the evils aimed at in corrupt practices acts.[16]
These words are as true today as they were a century ago.
I do not necessarily have a strategy for the cases I choose to review. Several weeks ago, I reviewed Roe v. Wade.[17] I criticize that case for the extent to which the Court majority was unwilling to be guided by a long judicial tradition, casting doubt on the wisdom of the decision, in order to follow a contemporary movement. Most liberals supported that decision, and most conservatives opposed it. Now, I have reviewed Citizens United, a case generally supported by conservatives and criticized by liberals. Both of these cases illustrate the dangers of constitutional interpretation that ignores a long tradition and calls into question the contemporary court’s views. In both cases, from different areas of constitutional law, we see the damaging impact of the modern judiciary’s lack of respect for history, tradition, and an essentially organic view of the law. I will have more to say about this in the future.
Copyright 2026, G. Christopher Scruggs, All Rights Reserved
[1] Citizens United v Federal Election Commission, 558 US 310 (2010), hereinafter “Citizens United.”
[2] Austin v. Michigan Chamber of Commerce 494 US 652 (1990), hereinafter “Austin.”
and McConnell v. Federal Election Commission 540 US 93 (2003), hereinafter “McConnell.”
[3] Bipartisan Campaign Reform Act of 2002 2 U. S. C. §441b (2000 ed.); McConnell, supra, at 204, Federal Election Commission v Massachusetts Citizens for Life, Inc. 479 US 249 (An86), hereinafter “MCFL.”
[4] Citizens United, 3
[5] Id. 4.
[6] Id, 3
[7] An example of this substitution is the Court’s conclusion that “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.” Id, at 5.
[8] U.S. Bill of Rights. U.S. Const. Amend. 1 (1791).
[9] See, Terminiello v Chicago, 337 US 1 (1949). I am oversimplifying because there does need to be a clear and present danger of violence, and the Court has limited the scope of this exemption. I will deal with these in future posts.
[10] Citizens United, 23, citing Eu v. San Francisco County Democratic Central Commission, 489 U. S. 214, 223 (1989); Monitor Patriot Co. v. Roy, 401 U. S. 265, 272 (1971).
[11] Linmark Associates, Inc. v. Willingboro, 431 U. S. 85 (1977); Time, Inc. v. Firestone, 424 U. S. 448 (1976);
Doran v. Salem Inn, Inc., 422 U. S. 922 (1975); Southeastern Promotions, Ltd. v. Conrad, 420 U. S. 546 (1975); Cox Broadcasting Corp. v. Cohn, 420 U. S. 469 (1975); Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 (1974); New York Times Co. v. United States, 403 U. S. 713 (1971) (per curiam); Time, Inc. v. Hill, 385 U. S. 374 (1967); New York Times Co. v. Sullivan, 376 U. S. 254; Kingsley Int’l Pictures Corp. v. Regents of Univ. of N. Y., 360 U. S. 684 (1959); Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495 (1952)); see, e.g., Turner Broadcasting System, Inc. v. FCC520 U. S. 180 (1997); Denver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U. S. 727 (1996); Turner, 512 U. S. 622; Simon & Schuster, 502 U. S. 105; Sable Communications of Cal., Inc. v. FCC, 492 U. S 520 U. S. 180 (1997); Denver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U. S. 727 (1996); Turner, 512
- S. 622; Simon & Schuster, 502 U. S. 105; Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115 (1989); Florida Star v. B. J. F., 491 U. S. 524 (1989); Philadelphia Newspapers, Inc. v. Hepps, 475 U. S. 767 (1986); Landmark Communications, Inc. v. Virginia, 435 U. S. 829 (1978); Young v. American Mini Theatres, Inc., 427 U. S. 50 (1976); Gertz v. Robert Welch, Inc., 418 U. S. 323 (1974); Greenbelt Cooperative Publishing Assn., Inc. v. Bresler, 398 U. S. 6 (1970). One can easily see the difficulty the court facees in dealing with corporate rights related to this or any issue given the huge number of cases.
[12] New York Times Co. v. United States, 403 U. S. 713 (1971) (per curiam); Time, Inc. v. Hill, 385 U. S. 374 (1967); New York Times Co. v. Sullivan, 376 U. S. 254 )1964)
[13] Citizens United, Kennedy Dissenting, 37. See footnote 55 to the dissent, where I think Kennedy makes a convincing argument that the founders could not have envisioned the kind of corporate speech the majority protects. I have added the emphasis.
[14] Id, 39.
[15] As an aside, it is my view that freedom of speech means exactly that and should have no application to campaign financing.
[16] Citizens United, Stevens dissenting, 42. See, United States v. Automobile Workers, 352 U. S. 567, 572 (1957) (quoting 40 Cong. Rec. 96).
[17] Roe v. Wade, 410 U.S. 113, (1973),


















