Today's Supreme Court's decision in Citizens United v. FEC represents the most significant campaign finance and perhaps First Amendment decision we've seen from the Court in a very long time. The decision struck down the part of the McCain/Feingold campaign finance law (BCRA) that banned corporations and unions from using their treasury funds to run candidate specific ads before a federal election. The decision treats corporations like individuals, focusing on the value of their speech as opposed to the unique identity of the corporation as speaker. Previous decisions, now overruled, had held that corporations presented a unique corruption threat to the political process: "that immense aggregations of wealth [amassed] through the corporate form" posed dangers that individual expenditures did not.
Most critics of the decision will suggest that the Court, with this decision, opened the floodgates to unlimited corporate and union spending in next year's and subsequent federal elections. The truth is that this decision is the latest in a series of decisions (four, to be exact) from the Roberts Court knocking down campaign finance laws. The floodgates, such as they are, were opened three years ago in a different case, Wisconsin Right to Life v. FEC. In fact, it is in this area of constitutional law – rather than the more salient cases dealing with race or abortion, for example – the replacement of Justice Sandra Day O'Connor has had its most dramatic impact. President Bush's appointments to the Supreme Court have tipped the balance against regulations that were constitutional only a short time ago.
Many will pontificate as to who benefits from these decisions – which parties or candidates? which types of corporations or unions? On these questions it is too soon to tell, but the greater effect will be on the state of the law in this area. The decision casts doubt not only on restrictions on corporate-funded ads, but also on the ban on corporate contributions to candidates and parties. That may be the next shoe to drop. If corporations have the same campaign finance rights as individuals and pose no unique corruption threat, why can the law ban their contributions but allow individual's contributions simply to be limited? Citizens United raises as many questions as it answers, and the lesson to be learned from recent Roberts Court decisions in this area is that even more transformative rulings are likely on the horizon.