What It Takes to Speak Freely: A Defense of Citizens United

Every election year brings renewed scrutiny surrounding the Supreme Court’s infamous Citizens United v. FEC (2010) decision, which ruled that the government could not limit personal or corporate financial contributions to political organizations not directly affiliated with a candidate. Activists and legal scholars alike often argue that the decision undermines American democracy by allowing the wealthy to play an outsized role in political discourse, but a deeper dive into the case suggests otherwise [1]. Citizens United does not undermine democracy; rather, it strengthens the ability of Americans to exercise the right most fundamental to democratic participation — that of free speech. By upholding precedent from Buckley v. Valeo (1976), which ruled that spending money is a form of speech, Citizens United maintained the integrity of First Amendment protections by securing the right for individuals to use their resources for the purpose of self-expression; as such, the ruling was correct on constitutional grounds.

According to case precedent, the First Amendment encompasses an individual’s right to appropriate their financial resources towards self-expression. The Supreme Court ruled in Griswold v. Connecticut (1965) that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance” [2], suggesting that citizens are guaranteed not only the rights listed in the Bill of Rights, but also penumbras, or additional rights that ensure that these core rights can be exercised. A key aspect of this ruling is the “life and substance” clause, which calls for the removal of obstacles for individuals to not only simply exercise their rights, but exercise them to a meaningful extent. This interpretation emphasizes that the protection of rights must go beyond their mere existence, ensuring that they are practical, accessible, and robustly safeguarded so that citizens can fully enjoy and benefit from them in real-world contexts.

Spending money is a penumbra of the First Amendment because it is necessary for making and disseminating the type of speech that the First Amendment was designed to protect. In Roberts v. U.S. Jaycees (1984), “the Supreme Court…recognized that the First Amendment’s protections extend to individual and collective speech ‘in pursuit of…political…ends’” [3]. In order to meaningfully exercise one’s First Amendment right to make political speech, however, one must spend money. Filings with the Federal Elections Commission show that between January and December of last year, 2024 presidential and congressional campaigns spent almost one billion dollars, while Political Action Committees (PACs) and party committees spent a combined $3.7 billion [4]. Without spending substantially, candidates simply would not be able to communicate their ideas to a wide audience effectively. So even though it is not technically necessary to spend money to exercise one’s right to make political speech, having the ability to spend gives this right the “life and substance” it needs to be fully realized and impactful. Freedom of the press is another example. The First Amendment guarantees freedom of the press, but in order for the press to sustain itself — paying its journalists, purchasing the supplies necessary for printing newspapers, etcetera — it must also make use of a hefty amount of capital. In 2021, newspaper publishers in the United States amassed a total of $20.61 billion in business expenses [5]. Again, while a newspaper could theoretically sustain itself without spending heftily, prohibiting media outlets from doing so would certainly hamper their ability to disseminate the news, thus reducing the “life and substance” of the First Amendment. Since it is necessary to spend money to meaningfully exercise one’s First Amendment rights, the First Amendment implicitly guarantees the right to freely allocate one’s financial resources for the purpose of self-expression as a penumbra.

Citizens United v. FEC ruled that this penumbra of the First Amendment should remain intact. The Supreme Court originally ruled in Buckley that many pre-existing limits on campaign contributions were unconstitutional [6]. Holding the right to spend money on self-expression as part of the right to free speech, the Buckley case held that “‘the First Amendment denies government the power to determine that spending to promote one's political views is wasteful, excessive, or unwise,’” and thus the government “cannot place limits on campaign expenditures, expenditures by a candidate from personal resources, or independent expenditures by groups supporting the campaign” [7]. Furthermore, the court justifies this by establishing the idea of spending money as a penumbra of free speech, stating that “‘people — candidates and contributors — spend money on political activity because they wish to communicate ideas” and have a “‘constitutional interest in doing so’” [8]. Buckley argues that, since spending money on political activity is a common means to create speech, the right to do so is constitutionally protected.

When the Federal Elections Commission challenged the penumbral relationship between money and speech as a justification for unlimited political expenditures in Citizens United, the court upheld Buckley precedent. The case concluded that a “prohibition on corporate independent expenditures [for political organizations] is thus a ban on speech,” directly citing from the Buckley per curiam opinion as precedential evidence:

“As a ‘restriction on the amount of money a person or group can spend on political communication during a campaign,’ that statute ‘necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached.’ Buckley v. Valeo, 424 U. S. 1, 19 (1976) (per curiam). Were the Court to uphold these restrictions, the Government could repress speech by silencing certain voices at any of the various points in the speech process” [9].

By upholding precedent from Buckley, Citizens United v. FEC effectively guaranteed that citizens would be able to exercise their right to spend money to express their beliefs as a penumbra of the First Amendment.

Given that Citizens United upheld a penumbra of the First Amendment, it was the constitutionally correct decision. Most opponents of the decision cite its impact on political discourse and campaign advertising –– namely that wealthy individuals and corporations now have a vastly outsized voice in the political sphere. They argue that, by enabling the speech of some to have significantly more reach than that of many others, the ruling has eroded the democratization of speech, thereby de facto reducing First Amendment protections [10]. University of Virginia School of Law professor Danielle Citron reminds us that in these cases, it is crucial to understand that the First Amendment — and the penumbras guaranteed alongside it — is meant to allow for the greatest possible expression of speech for each individual in absolute terms, but not in comparative terms [11]. Put more simply, First Amendment rights give individuals the freedom to make as much speech as they possibly can. They do not ensure that the amount of speech these individuals can disseminate will be equal. Thus, criticisms of Citizens United v. FEC that start from a premise of democratization — which comprise the vast majority of arguments against the decision — are inherently invalid from a constitutional perspective.

Thus, while the Citizens United decision may have produced a plethora of undesirable consequences, it was still decided in accordance with constitutional precedent. The Court accurately designated the spending of financial resources to express one’s views as a penumbra of the First Amendment and defended that penumbra by upholding precedent from Buckley v. Valeo, where this relationship was first established. Citizens United preserved an individual privilege that, while unenumerated, is nevertheless enshrined in our Bill of Rights. There are still those who argue that the case should have been decided differently because of its effects on American political dialogue. These critics hold that the Court prioritized constitutional originalism over real-world consequences, ideology over practicality. However this ruling did not represent a failure in judgment, but rather the affirmation of a maxim that is paramount to American democracy: that our constitutionally guaranteed rights must be upheld, regardless of the consequences.

Bibliography

[1] Harris, Shanice. “Has Citizens United Decision Undermined Democracy?” Northwestern Now. Accessed September 28, 2024. https://news.northwestern.edu/stories/2024/01/minow-debate-series-explores-whether-citizens-united-has-undermined-democracy/.

[2] Oyez. “Griswold v. Connecticut.” Accessed September 28, 2024. https://www.oyez.org/cases/1964/496.

[3] “The First Amendment: Categories of Speech.” Congressional Research Service, March 28, 2024. https://sgp.fas.org/crs/misc/IF11072.pdf.

[4] FEC.gov. “Statistical Summary of 12-Month Campaign Activity of the 2023-2024 Election Cycle.” Accessed September 28, 2024. https://www.fec.gov/updates/statistical-summary-of-12-month-campaign-activity-of-the-2023-2024-election-cycle/.

[5] Statista. “Expenses of U.S. Newspaper Publishers 2021.” Accessed September 28, 2024. https://www.statista.com/statistics/185239/estimated-expenses-of-us-newspaper-publishers-since-2005/.

[6] FEC.gov. “Buckley v. Valeo.” Accessed September 28, 2024. https://www.fec.gov/legal-resources/court-cases/buckley-v-valeo/.

[7] Justia Law. “Buckley v. Valeo, 424 U.S. 1 (1976).” Accessed September 28, 2024. https://supreme.justia.com/cases/federal/us/424/1/.

[8] Ibid.

[9] Oyez. “Citizens United v. Federal Election Commission.” Accessed September 28, 2024. https://www.oyez.org/cases/2008/08-205.

[10] 179. “Citizens United Explained | Brennan Center for Justice,” April 21, 2022. https://www.brennancenter.org/our-work/research-reports/citizens-united-explained.

[11] “At Cutting Edge of Free Speech, Citron Advocates for Reform | University of Virginia School of Law,” February 15, 2021. https://www.law.virginia.edu/news/202102/cutting-edge-free-speech-citron-advocates-reform.