The Case for Overturning Citizens United
In 2010, the U.S. Supreme Court’s ruling in Citizens United v. Federal Election Commission struck
down laws restricting union and corporate spending in elections and paved the way for
unlimited individual spending. The ruling has led to a flood of money from a tiny number of
elite, often anonymous, donors who are increasingly intervening in our local elections.
Americans realize that a few donors contributing large amounts of money, either for or
against a legislator, will likely influence that legislator’s decisions. They understand that
entirely unbounded spending serve only to undermine our democracy and inspire
corruption. In this light, a majority of Americans on both sides of the political spectrum
believe that unrestricted money has a dangerous and undue influence on our political
process and that we must remedy the Citizens United ruling.
There are many compelling reasons why all conservatives should be concerned about the
impact of the Court’s ruling and should join the efforts of fellow conservatives to overturn
Citizens United.
As James Madison wrote in The Federalist Papers No. 57:
Who are to be the electors of the federal representatives? Not the rich, more than the poor; not the
learned, more than the ignorant; not the haughty heirs of distinguished names, more than the humble sons
of obscure and unpropitious fortune. The electors are to be the great body of the people of the United
States.1
Most Republicans think Citizens United should be overturned:
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Republican voters oppose the Citizens United ruling by a 2-1 margin. i
79% of Republicans hold an unfavorable view of spending in elections by special
interests and lobbyists. ii
71% of Republicans believe that reducing the influence of money in politics is an
important issue. iii
A majority of Republican voters favor a constitutional amendment to overturn Citizens
United. iv
81% of Republicans think there should be limits on how much money corporations can
give in elections. And 90% of voters with incomes over $100,000 support such limits.v
The best poll, of course, is an actual vote of the people, such as the statewide votes held
in November 2012 in Colorado and Montana on ballot questions calling for a
constitutional amendment. Both votes demonstrated similarly strong support: 74% of
Coloradans approved Amendment 65; Montanans approved Initiative 166, also by 74%,
while simultaneously backing Mitt Romney for President by a margin of more than 10
points.
James Madison, The Federalist, No. 57.
PROMINENT REPUBLICAN SUPPORT FOR REFORM AND AN AMENDMENT
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The Court’s decision rolled back nearly a century of laws – federal and state –
passed by lawmakers from both sides of the aisle who, regardless of political
affiliation, agreed that reasonable restrictions can and should be placed on campaign
spending by powerful special interests in order to protect our democracy. Bipartisan
reform efforts included the original ban on direct corporate contributions in the 1907
Tillman Act, and both the 1971 Federal Election Campaign Act and its strong
amendments passed in the aftermath of the Watergate scandal.
Citizens United itself struck down key parts of the Bipartisan Campaign Reform Act of
2002 (BCRA), known as the McCain-Feingold Act. BCRA was introduced by Senator
John McCain, and was signed into law by President George W. Bush.vi
U.S. Senator Barry Goldwater of Arizona uttered these words in support of bipartisan
campaign finance reform in 1983: "[O]ur nation is facing a crisis of liberty if we do not control
campaign expenditures. We must prove that elective office is not for sale. We must convince
the public that elected officials are what James Madison intended us to be, agents of the sovereign people,
not the hired hands of rich givers, or what Madison called factions."
Arizona Senator John McCain, Goldwater’s successor and the 2008 Republican
presidential nominee, called the Supreme Court’s ruling “a combination of arrogance,
naiveté and stupidity, the likes of which I have never seen.”
Arguing that campaign finance and government waste are often connected, former
Senator Alan Simpson of Wyoming notes that, “Public employee pensions, which far exceed
their private-sector equivalents, and multibillion-dollar defense programs not requested by the Pentagon
are but two examples of the very real price we pay when special interest groups are permitted to influence
policies. Both parties are to blame.”vii
Decrying Citizens United and seeking to reinvigorate the tradition of pro-reform
conservatives in Congress that he’d been a part of for decades, former Senator Warren
Rudman of New Hampshire wrote that “Supreme Court opinion notwithstanding,
corporations are not defined as people under the Constitution, and free speech can hardly be called free
when only the rich are heard.”viii
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In April 2015, U.S. Senator Lindsay Graham (R-S.C.) stated, “Well, Citizens United
has got to be fixed. … You’re going to need a constitutional amendment to fix this problem.” In a
subsequent interview, he stated, “We’ve got to figure out a way to fix this mess, because basically
50 people are running the whole show. You’re going to have money dumped in this election cycle that’s
going to turn off the American people. There’s going to be a need and a movement to try to control the
money in politics.”
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New Hampshire Republican state Senator Russell Prescott was influential in
unanimously moving forward a bill in the Republican controlled state Senate calling for a
constitutional amendment. He stated, “the greatest issue we face is at the federal
level, and it is the 2010 Supreme Court decision Citizens United v. FEC. This ruling
removed most regulations in regards to electioneering communication by corporations or labor unions. It
was a contentious, 5-4 ruling, and one of the dissenters, retired Justice John Paul Stevens, said something
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I found interesting: ‘(In regards to the ruling), the voter is less important than the man who provides
money to the candidate,’ he said. ‘It's really wrong.’”ix
Maine Republican state Senator Edward Youngblood who co-sponsored Maine’s
resolution calling for a constitutional amendment that passed the Senate by a 25-9
margin stated at a rally calling for an amendment, “There has to be a way to secure First
Amendment rights to speech and still control the amount of dollars spent on campaigns. It should be
plain to everyone after the election we’ve just had, which broke records for spending, that the system isn’t
getting better.” x
CITIZENS UNITED V FEC – BAD FOR CORE CONSERVATIVE POLITICAL CONCERNS
Protecting States’ Rights
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States no longer have the ability to limit outside spending in their elections. Twenty four
states had laws on the books which were undermined or invalidated by the Citizens United
ruling.xi
Montana Supreme Court Justice James Nelson, an appointee of Republican Governor
and RNC Chairman Marc Racicot, wrote in Western Tradition Partnership vs. Montana, “I
thoroughly disagree with the Supreme Court’s decision in Citizens United. I agree, rather, with the
eloquent and, in my view, better-reasoned dissent of Justice Stevens.”xii The Montana court ruling
and 99 year-old anti-corruption statute were thrown out by the U.S. Supreme Court.
Supporting Entrepreneurs and Small Business
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75% of business leaders felt that the current U.S. campaign finance system is payto-play in a 2013 survey by the Committee on Economic Development.
87% of surveyed business leaders surveyed said they want limits on how much
money individuals, corporations, labor and independent groups can spend for political
purposes during an election. Such limits would require overturning Citizens United. xiii
Small business owners oppose the Citizens United ruling: A January 2012 survey indicated
that 66% of the small business owners polled felt that the Supreme Court’s ruling has
been bad for small business, compared to only 9% who felt that it has been good
for small business.
Additionally, 88% of small business owners polled view money in politics
negatively, including 68% who view it “very negatively.” xiv
It’s not hard to see why – most political contributions given to Super PACs and
independent groups come from a very, very small pool of extremely wealthy donors and
giant corporations – not small business owners.
Small business owners find their needs as entrepreneurs drowned out by crony capitalists
who use their oversized political influence to write the rules in their favor.
Damaging the Republic, Empowering Factions
 Big money is weakening the eventual Republican nominee for President by keeping
candidates with little public appeal in the race longer. With a few exceptions, having
access to enormous wealth is a prerequisite for a candidate’s ideas to get public airing.
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While the Tea Party and evangelical wing of the party is fed by grassroots activism, many
of the hard right successes have benefited from deep-pocketed donors necessary to field
candidates in the new big money system.xv
The U.S. Chamber, historically a top spender, is looking to quell the Tea Party
insurgency by taking out incumbent Republicans with cash from undisclosed sources. xvi
The battle for the heart of the GOP may not be won by those with the best ideas and
who best represent conservative values. It will instead be won by those who best
represent big money interests and gain their support. The danger for America is that the
profit motives of crony capitalists, rather than values or ideology of either party, will end
up dictating priorities for our nation.
Addressing First Amendment Concerns
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The most frequently raised objection about limiting money in politics has been that
doing so infringes on First Amendment rights. We disagree. Money is a means of
amplifying a message, rather than the message itself. It is the message that is protected
under the First Amendment – not its microphone. In fact, there is a danger when we
allow certain individuals and special interests to amplify their voice without limit that we
will drown out the voices of the rest of us.
The Supreme Court stated this clearly in its 1949 case in Kovacs v. Cooper.2 In Kovacs, a
union in the city of Trenton was blaring its message with a sound truck going down
every street. In response, the city passed an ordinance requiring that sound trucks could
only go down every third street. The Supreme Court upheld the ordinance as a
reasonable regulation on the manner of speech. It found that public streets served other
public purposes that needed to be protected and, as Justice Jackson wrote in his
concurrence, “freedom of speech for Kovacs does not…include freedom to use sound
amplifiers to drown out the natural speech of others.”3
At a certain point, election spending becomes so substantial that small numbers of
special interest groups and wealthy donors are able to buy political influence, thus
undermining the Republic. Alarmingly, we’ve reached this point – as of August 1, 2015 –
fewer than four hundred families were responsible for nearly half of the money raised in
the 2016 presidential campaign. xv
Undeniably an individual should be banned from buying a politician a yacht in exchange
for a vote, as implicit as the exchange may be. Similarly, individuals and special interests
should be forbidden from spending millions in an election in a thinly veiled attempt to
buy political influence.
A recent poll shows that the American public agrees with us – the First Amendment
argument against limiting spending does not resonate with a vast majority of voters. xviii
We are not suggesting that government have the ability to prevent any money from being
spent on elections, but that there be reasonable limits that prevent the voices of the everyday American from being drowned out.
Kovacs v. Cooper, 336 U.S. 77 (1949).
Id. at 97 (Jackson, J., concurring).
Support is growing quickly for an amendment
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More than 5 million signatures have been gathered in support of an amendment.
More than 200 members of Congress have declared their support, including 55
members of the U.S. Senate, 54 of whom voted in favor of an amendment in September
of 2014.
More than 650 local municipalities and 16 states have called for an amendment.
It’s clear that Americans are concerned about the impacts of Citizens United on our
democracy and our American way of life. With a growing popular movement calling for
change, there is now a momentous opportunity to reach out – across the chamber aisle or
across the town hall – and work with others to undo this ruling.
From the grassroots up, the American people are mobilizing to reclaim the right of local
voters to hold sway over their elected decision-makers. By calling for and supporting a
constitutional amendment to overturn Citizens United, conservatives will play an integral and
lauded role in protecting our democracy for generations to come.
Lake Research Partners. “Recent Research on the Amendment to Overturn Citizens United.” 14 Aug 2014. Web. 4 Dec 2014.
http://www.citizen.org/documents/Memo.CitizensUnited.frev.pdf
ii Ibid.
iii Ibid.
iv Ibid.
v Associated Press, “The AP-National Constitution Center Poll,” GfK Roper Public Affairs & Corporate Communications.1 Aug 2012. Web. 4 Dec
2014. http://ap-gfkpoll.com/main/wp-content/uploads/2012/09/AP-NCC-Poll-August-GfK-2012-Topline-FINAL_1st-release.pdf
vi Roll call votes for BCRA in the U.S. House accessed via the U.S. House Clerk here: http://mentata.com/ds/retrieve/congress/vote/VC107S22.
Roll call votes for BCRA for the U.S. Senate accessed via U.S. Senate Clerk here:
www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=107&session=1&vote=00054
vii Simpson, A. (25 April 2011). “Special Interests Distort Elections.” Politico. Retrieved 1 May 2012 from
http://www.politico.com/news/stories/0411/53597.html#ixzz1tkI09YdT.
viii Rudman, R. (5 Feb 2010). “Republicans losing their way on campaign reform.” Washington Post. Retrieved 1 May 2012 from
http://www.washingtonpost.com/wp-dyn/content/article/2010/02/04/AR2010020403624.html.
ix http://www.seacoastonline.com/article/20140701/Opinion/407010340
x http://bangordailynews.com/2013/01/22/politics/maine-lawmakers-join-effort-to-amend-constitution-to-allow-campaign-funding-limits/
xi http://www.ncsl.org/research/elections-and-campaigns/citizens-united-and-the-states.aspx#laws
xii Western Tradition Partnership vs. Montana 2011 MT 328 (MT 2011). (Nelson, J. dissenting).
xiii Hart Research/American Viewpoint, for the Committee on Economic Development. “American Business Leaders On Campaign
Finance/Reform – June 2013.” https://www.ced.org/pdf/Campaign_Finance%2C_Hart_and_AmView.pdf
xiv American Sustainable Business Council (17 Jan 2012). “Poll Results: Money and Politics” Retrieved 18 January, 2012, from
http://www.asbcouncil.org/poll_money_in_politics.html.
xv U.S. News. “Republicans Don’t Like the Republican Party.” July 23, 2013. Accessed Sept 1, 2015.
xvi Palmer, Anna & Sherman Jake. Politico. “Chamber gearing up to take out GOP incumbents.” July 24, 2015. Accessed Sept 1, 2015.
http://www.usnews.com/opinion/blogs/robert-schlesinger/2013/07/23/poll-shows-republicans-divided-by-tea-party-evangelicals-andmoderates. http://www.politico.com/story/2015/07/chamber-of-commerce-republican-incumbent-congress-120557
xvii Lake Research Partners. “Recent Research on the Amendment to Overturn Citizens United.” 14 Aug 2014. Web. 4 Dec 2014.
http://www.citizen.org/documents/Memo.CitizensUnited.frev.pdf
xvihttp://www.nytimes.com/2015/08/02/us/small-pool-of-rich-donors-dominates-election-giving.html?smprod=nytcoreiphone&smid=nytcore-iphone-share&_r=0.
i