Many people in the United States do not have the full rights of citizens – for example, minors, convicted felons, and resident immigrants cannot vote – but thanks to Citizens United v. Federal Election Commission, corporations do. How did corporations become more human than humans? By going to court and winning the right to participate in “electioneering.”
Electioneering is generally defined as the activity of trying to persuade people to vote for a particular political party. The legal definition gets much more specific, but under many circumstances, electioneering is protected speech under the First Amendment. By federal law, an electioneering communication is “any broadcast, cable, or satellite communication” that “refers to a clearly identified candidate or Federal office” and is made within 30 days of a primary election, and that is “publicly distributed.”
Who can electioneer?
The Bipartisan Campaign Reform Act of 2002 (BCRA) prohibited corporations and unions from using their general treasury funds for electioneering or otherwise advocating for the election or defeat of a candidate, reinforcing similar restrictions imposed by the Taft-Hartley Act of 1947 and the Federal Election Campaign Act Amendments of 1974. Citizens United, a conservative nonprofit organization, sought to challenge BCRA in a variety of cases before attempting an injunction that would allow them to air a film critical of then-candidate Hillary Clinton in the month leading up to the primaries. The federal district court in Washington, D.C. denied the injunction, finding that the film could not reasonably be interpreted as anything other than electioneering. Citizens United appealed.
Supreme Court ruling
In a 2010 ruling that remains controversial, the U.S. Supreme Court reversed the district court’s ruling, in a 5-4 decision. Delivering the Court’s majority opinion, Justice Anthony Kennedy found that the government may not keep corporations or unions from spending money to support or denounce candidates. The decision ruled that while corporations or unions may not give money directly to campaigns, they could attempt to persuade the voting public through means such as ads, effectively redefining corporations as people by granting them First Amendment rights.
Impact of Citizens United
Following the Citizens United decision, election campaign spending skyrocketed, more than doubling between 2010 and 2014, as corporations dumped money into “super PACs” – political action committees that often exist solely to support an individual candidate and which are only nominally independent from the candidate’s campaign. With just a handful of donors contributing most of the money involved in campaigning, candidates have almost no choice but to focus their efforts on recruiting the support of those corporate donors if they want to win.