State of Elections

William & Mary Law School | Election Law Society

Citizens United Against the Supreme Court

The recent Citizens United ruling by the US Supreme Court, which holds that First Amendment protections apply not just to individual speakers but also to corporations, is only the latest in a decades-long series of decisions by the Court that have expanded the scope of the First Amendment into realms never imagined by our Founding Fathers.

Beginning with Buckley v. Valeo in 1976, the Justices have embraced the concept that money is equal to speech, and that therefore any limitation on campaign spending violates the First Amendment.  This week’s ruling simply expands this protection to cover corporations, which are by definition aggregators of money.  So now corporate money will completely overwhelm individual money in the arena of political speech, and Madison’s conception of our government as a forum for the broadest possible public deliberation of issues will be rendered legally moot. 

Whatever the Justices’ reasoning in these cases, It seems highly unlikely that when the Founders wrote “Congress shall make no law … abridging the freedom of the speech … ”, what they really meant was “Congressional representation shall be sold to the highest bidder” – which is the de facto effect of this series of decisions.

What are the People to do?

It should now be clear to proponents of campaign finance reform that we can no longer look to traditional legislation as a tool for limiting the influence of private donations on our electoral process.  If this issue is going to be successfully addressed, it will have to be at a higher level — at the level of the US Constitution.

For example, consider a constitutional amendment that would limit the total amount of money that can be spent in a given Federal general election.  What might be the impact of limiting total expenditures in a presidential general election to, say, $350 million per candidate?  Arguably if a candidate needs more than that to make his or her case to the American electorate, maybe what we’re getting isn’t a better understanding of the candidate, but more spin and fancier packaging.  And if no one candidate can spend more than $350 million, a level playing field is achieved regardless of the source of funds.

This amendment, as proposed at, includes: provisions for setting spending limits for each Federal general election, and for partial public funding of such elections; a formula for distributing public campaign funds to qualifying candidates; and strict limits on the amount of private contributions that candidates can raise to augment their share of publicly allocated funds.

Limiting the total amount of money that can be spent in a campaign puts an end to the spiraling cost of campaigns, the need for sitting Congressmen to constantly raise money, and the outsized influence of major campaign contributors.

There may well be other, perhaps better, schemes for altering the basic dynamics of election campaign financing.  Stanford Law Professor Lawrence Lessig recently launched a Web site, with a draft amendment that takes a more abstract approach to the issue, offering up a kind of “prime directive” that limits by broad stroke the ways that campaigns can raise money.   Other amendment proposals put forth in the future may also merit serious consideration.  No solution, however, will succeed if it cannot be clearly expressed as a constitutional amendment, and explained to the voting public in simple and compelling terms.

The Supreme Court is not the final authority on matters of US constitutional law: the People are.

Neal Rechtman is author of The 28th Amendment and an advocate of “open sourcedemocracy.  Mr. Rechtman is also the founder of, a legal employment service.


He was a prolific writer and his medical textbooks were in standarduse
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1 Comment

  1. Jerald Lentini

    April 5, 2010 at 6:59 pm

    One of the subtle harms of Citizens United that recently occurred to me is the propensity it creates to doubt that we’re receiving honest services from government officials. To give a recent example, last week the President reversed course on offshore drilling, announcing a very wide-reaching oil drilling expansion off the Atlantic, Gulf, and northern Pacific coasts. Now, it’s entirely possible and quite likely that he’s reversed like this because of legislative or practical concerns, or maybe he’s become convinced that the process is better served by an early concession of this point, or maybe he has actually changed his mind on the merits of the policy. Or perhaps he’s anticipating the usual summertime gas price spike and is hoping to blunt the criticisms that are sure to come by taking a prophylactic step that conservatives have loudly touted as a way to lower prices.

    But perhaps the reason is that we have an election in November that’s expected to cost around $3.7 billion (according to the Center for Responsive Politics), and that figure is less than 1/5th of Exxon-Mobils net annual profit in their WORST year of the last 7. If the oil industry wanted to heavily invest in this cycle, they have more than enough money to go beyond simple advertising–they could fund parallel field campaigns, massive ad buys in every media, billboards around the country, and make every long-shot pro-drilling candidate into a bona-fide contender.

    The potential for a 19 billion-pound bull to rampage through the china shop of our elections over a single issue that directly affects their long-term bottom line ought to weigh on any halfway competent politician’s mind. Think of it as an electoral version of a “heckler’s veto”: no matter the merits of the policy at issue, if the subject is thoroughly taboo because of the outsized interests of the relevant corporations, the subject won’t be broached or will only move in one direction.

    The Court seems to feel that such an outcome is compelled by Constitutional language. Regardless of whether or not that decision stands up on the merits, on the basis of its policy outcomes I think it’s incredibly damaging to good and responsive government. Corrective amendments are almost as old as the nation itself (the 11th Amendment, the first amendment ratified after the Bill of Rights, was itself a corrective amendment, overruling the Court’s holding in Chisholm v. Georgia). I think we’ve certainly reached a point where another corrective amendment is warranted, and this one definitely has to beat the clock before the culture of corporate deference becomes so enmeshed in Congress as to be ultimately impossible to extract.

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