Dispelling the Top Five Citizens United Decision Myths

John Kramer
John Kramer · January 26, 2010

Arlington, Va.—Let’s take a deep breath, America.  The Citizens United decision, which expanded the free speech rights of people who join together as corporations and unions, won’t usher in the end of the world as we know it despite ranting to the contrary.  Here are some of the biggest overstatements by supporters of campaign finance restrictions and the Institute for Justice’s response.

Citizens United is like Dred Scott

You might think that a judicial decision allowing corporations to spend their own money on their own speech is not quite comparable to upholding slavery, but apparently no criticism is too outlandish for the critics of Citizens United.  According to Florida Representative Alan Grayson, Citizens United “is the worst Supreme Court decision since the Dred Scott case.  It leads us all down the road to serfdom.”  Repeating this claim, Keith Olbermann hyperventilated that Citizens United “might actually have more dire implications than Dred Scott v. Sanford.”

Institute for Justice Senior Attorney Steve Simpson said, “In the strange world occupied by those who accept this absurd argument, Americans will trudge lemming-like off of a cliff, not because they are being driven by slave-masters with whips and chains, but because they cannot resist the clarion call of corporate advertising.  This conclusion is as ridiculous as it is patronizing.  If corporations are capable of making the public do their bidding, then why isn’t everyone drinking New Coke while driving their Edsels to go purchase Betamax video recorders?  The Institute for Justice agrees with the U.S. Supreme Court—and the Framers—that Americans are smart enough to avoid being “enslaved” by corporate advertising, whether of the political or commercial variety.  Representative Grayson and Keith Olbermann might want to ask themselves whether their view of democracy leaves any room for the notion that voters are capable of thinking for themselves.”

Citizens United will allow corporations to buy elections and will ruin our democracy

“The bottom line is, the Supreme Court has just predetermined the winners of next November’s election.  It won’t be the Republican or the Democrats and it won’t be the American people; it will be Corporate America.” — Sen. Charles E. Schumer (D–N.Y.)

IJ Senior Attorney Bert Gall said, “Apparently, quite a few of our representatives have absolute contempt for their constituents.  Like the previous claim, this one rests on the notion that if corporations are permitted to speak during elections, the voters will be unable to think for themselves.  The Institute for Justice can’t help recalling Groucho Marx’s line that he wouldn’t want to join any club that would have him as a member.  Could it be that some of our politicians don’t trust voters because they were elected?  In any event, the First Amendment assumes that citizens are able to think and judge the truth for themselves.  The evidence seems to back up that assumption.  Corporate advertising, after all, has not led to uniformity in the commercial realm; it won’t lead to that in the political realm.  But if politicians are concerned about that, they are free to compete in the marketplace of ideas like everyone else.”

The Fair Elections Now Act (FENA) is an appropriate response to CU

“The only comprehensive option available to change the rules of the game in Washington, D.C. would be to embrace a small donor/public funding of elections model like the ‘Fair Elections Now Act’ (S. 752, H.R.1826).” — David Donnelly, National Campaigns Director, Common Cause

Bill Maurer, IJ Washington Chapter’s executive director, said, “The ruling in Citizens United means precisely one thing:  More organizations are now free to engage in independent political speech.  The campaign finance clique’s bizarre response to this supposed ‘problem’ of expanded free speech rights is to spend the taxpayers’ money on a bailout for politicians.  This argument, however, is nothing but pure opportunism on the part of organizations that have been pushing taxpayer-funded elections—which is nothing more than a political version of “cash for clunkers”—for years.  (For a brief video on FENA, visit:  www.ij.org/FENAvideo.)  Taxpayer-funded elections have always been a bad idea, and there’s nothing about the Supreme Court’s decision in Citizens United that changes that.”

Citizens United is judicial activism that overturned 100 years of judicial precedents

“The Supreme Court’s 5-4 decision holding that corporations and unions can spend unlimited amounts of money in election campaigns is a stunning example of judicial activism by its five most conservative justices.”
— Erwin Chemerinsky, Dean, University of California, Irvine School of Law

IJ Staff Attorney Paul Sherman said, “Citizens United was a straightforward application of basic First Amendment principles.  The First Amendment protects both the right to speak and the right to associate, and the government cannot compel any association of people—even corporations or unions—to surrender their right to speak.  There is nothing “activist” about enforcing the clear commands of the Constitution.  Indeed, protecting these rights from government infringement is the judiciary’s highest purpose.”

Sherman continued, “Moreover, Austin v. Michigan Chamber of Commerce, which the Court overruled in Citizens United, was based on a rationale—that the government can “level the playing field” by reducing the ability of some groups to speak effectively—that the Court had consistently rejected in earlier decisions, including its first major campaign finance case, Buckley v. Valeo.  Since Austin, the Court has consistently rejected that rationale when the government has advanced it as a reason to restrict speech.  Thus, in overruling Austin, the Court was eliminating an aberration in its First Amendment jurisprudence.  In doing so, it was following a long tradition of overruling precedents (such as Plessy v. Ferguson and Bowers v. Hardwick) that wrongly diminished, rather than protected, constitutional rights.”

Sherman concluded, “Likewise, when Fred Wertheimer, president of Democracy 21, claimed ‘With a stroke of the pen, five Justices wiped out a century of American history devoted to preventing corporate corruption of our democracy,’ this complaint was simply wrong on the history.  Although corporations have been prevented from making contributions to political candidates since 1907, it was not until 1990 that the U.S. Supreme Court considered whether it would be constitutional to uphold limits on corporate and union spending on independent political speech.  The Court upheld those restrictions by a narrow 5-4 vote in Austin v. Michigan Chamber of Commerce, but Austin was hardly a bedrock of constitutional law.  Indeed, it was the first time in our nation’s history that the Supreme Court had sanctioned a limit on independent political speech.  By reversing Austin, the Supreme Court has corrected this error, and brought the protection of corporate and union speech back in line with that of other groups.”

Corporations are not people so they have no free speech rights

“Most wrongheaded of all is its insistence that corporations are just like people and entitled to the same First Amendment rights.  It is an odd claim since companies are creations of the state that exist to make money.”  — “The Court’s Blow to Democracy,” New York Times Editorial

Institute for Justice Staff Attorney Robert Frommer said, “True, corporations are not people.  But they are made up of people, like every other association—from partnerships, to marriages, to neighborhood groups, to nonprofits, and all the way up to the New York Times.  If individuals have the right to speak, then they have the right to join with others to speak, whether they join with one person or 10,000.  Associating with others is a very effective means of speaking out, just as it is an effective means of doing virtually everything else.  Take away cooperative effort and the money necessary to fund it, and the New York Times would be nothing more than a pamphlet being published in someone’s garage.  As Chief Justice Roberts said in his concurrence, ‘The First Amendment protects more than just the individual on a soapbox and the lonely pamphleteer.’”

For more information, visit www.ij.org/FirstAmendment.

IJ’s Citizens United brief is available at www.ij.org/citizensunited.