Citizens United v. Federal Election Commission and Us
Separation of Powers Series
Part 5
By Hooshyar Afsar
Introduction
Citizens United v. Federal Election Commission (2010) is a landmark decision by the Supreme Court of the United States (SCOTUS) that fundamentally changed the role of big money in the American political process. The Court’s controversial determination that corporations could not be limited in their expenditures on political broadcasts (speech), as such would be a violation of the First Amendment, has had rippling effects throughout our electoral and political system. In this article, I will start by providing the historical background to the Citizens United decision, the ruling and its aftermath in the last 15 years, and finally, how it impacts our community and all immigrant communities in the U.S.
Campaign Finance Limitation Before Citizens United
The increasing impact of money in American politics was an existing trend even before Citizens United. This happened on “both sides of the aisle” and included Democrats and Republicans. In fact, both Barack Obama and Hilary Clinton raised so much money in the 2008 primary and general election campaigns that they decided not to apply for public matching funds available through the Federal Election Commission (FEC), the “independent regulatory agency charged with administering and enforcing the federal campaign finance law.” [1]
Then, in 2004, months before the presidential election featuring President George W. Bush and Senator John Kerry, director Michael Moore released a documentary, Fahrenheit 9/11, about the September 11 terrorist attacks. The documentary was critical of President Bush. A non-profit, conservative advocacy organization based in Washington, D.C., called Citizens United (CU), filed a complaint with the FEC, alleging the documentary violated the Bipartisan Campaign Reform Act (BCRA) of 2002. The BCRA prohibited political advertisements by an “incorporated entity” (like a corporation or a Political Action Committee) reaching more than 40,000 people from mentioning a candidate by name 30 days before primary elections and 60 days before general elections.
The FEC dismissed the complaint, asserting that there was no evidence that Moore’s documentary was promoting a certain candidate within the time limits mentioned above. In response, CU made its own documentary against Democratic candidates in the 2004 presidential elections. The FEC ruled that since CU was not a bona fide film making entity and was clearly asking viewers to vote against a certain candidate, the BCRA limits applied. CU then made another documentary, specifically against Hilary Clinton in the 2008 campaign, and filed for protective rulings with the U.S. District Court in Washington, D.C. The District Court later ruled against CU, which then appealed the case directly to SCOTUS in 2008.
The Citizens United Decision
The case took an unusually long time and multiple iterations to get to a final decision, including withdrawing an initial opinion which limited its impact to the advertising and airing of CU’s documentary and the later scheduling of additional arguments to include other similarly-situated cases. The final SCOTUS majority opinion, issued in January 2010 and authored by Justice Anthony Kennedy, framed the case as a First Amendment freedom of speech issue and on a broad scale declared that expenditure limits imposed by the BCRA were unconstitutional.
Justice Kennedy wrote that the First Amendment “prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.” He basically argued that corporations and unions are associations of people and therefore First Amendment provisions apply to them. The decision also struck down other SCOTUS rulings in strengthening the BCRA, a move defended by Chief Justice Roberts—writing in a concurring opinion—who explained that precedence (other rulings of SCOTUS in the past) did not stop SCOTUS from suddenly changing course.
The minority (dissenting) opinion, written by Justice John Paul Stevens, is widely considered a harbinger of what was to come in the aftermath of Citizens United. He criticized the method utilized by the majority to broaden the case and the outcome, concerned both for the SCOTUS as an institution and the integrity of elections and people’s trust in them. He wrote that the majority ruling “threatens to undermine the integrity of elected institutions across the Nation. The path it has taken to reach its outcome will, I fear, do damage to this institution.” He added: “A democracy cannot function effectively when its constituent members believe laws are being bought and sold.”
Justice Stevens further argued that the Constitution and First Amendment were intended for “we the people” (the starting three words of the original constitution) and not legal entities like corporations who do not have individual self-expression or self-realization. He also concluded that large independent expenditures generate more influence than direct campaign contributions. Justice Stevens cited data at the time that 80% of the public viewed independent corporate expenditures as a method to gain unfair political influence and was concerned that the SCOTUS majority ruling would cause people to “lose faith in our democracy.” As shown below, the emergence of Super PACS and influence of billionaires on elections in the 16 years since the ruling have proven Justice Stevens’ fears valid.
Impact on the American Electoral Process
Since Citizens United, the impact of money on elections has grown in leaps and bounds. A variety of studies have shown that the ruling has helped Republican candidates at both the state legislature level and in Congress. One study published jointly by the University of Chicago, Columbia University, and the London School of Economics found “that Citizens United increased the GOP’s average seat share in the state legislature[s] by five percentage points.” [2] While the focus of the SCOTUS decision was corporations and unions, the impact has resulted in the emergence of super PACS (Political Action Committees) and increased influence of billionaire donors on elections.
The Super PACS have the lion’s share of what is referred to as “outside spending” (i.e., money not contributed directly to a candidate’s campaign), which increased from $574 million in 2008 (the last elections prior to the decision) to $4.5 billion in 2024. The share of wealthy individuals’ contributions (top 100 individual donors) has increased from 1.5% of total money spent on elections in 2008 to 14.8% in 2024. [3] According to a report by Open Secrets (a transparency organization that tracks political expenditures): “The biggest donors in 2010 were Robert and Doylene Perry, who gave $7.6 million. That total would just make it into the top 70 in 2024, when everyone in the top 10 gave at least $42.3 million, with Elon Musk leading the way at $280 million.” [3]
Successful International Examples of Handling the
Influence of Money on Elections
This unlimited “money in politics” system does not have to be the norm. In Canada, “campaign finance rules interlock to create a political system where one of the defining features of U.S. politics—massive private spending—is absent.” [4] According to a report by the Brennan Center for Justice, in seven major categories of campaign finance regulations—including contribution limits, limits on self-funding, expenditure limits, public financing, and small donor matching through tax credits—Canada has strong measures in place while the U.S. has none except for two categories at some state and local levels. Notably, “Canadians appear to be happy with their system overall. As recently as 2023, a comfortable majority of Canadians were satisfied with the way democracy worked in their country. That same year, just 28 percent of Americans said the same about the United States, and the role of large donors and other wealthy interests often ranks among Americans’ top complaints.” [4]
In addition to Canada, the Scandinavian model utilized in Norway, Finland, Sweden, Denmark, and Iceland has high levels of public funding and strong transparency. There are also international organizations such as International IDEA (Institute for Democracy and Electoral Assistance) with 35 member countries that stand for “[a]dvancing democracy worldwide … through support to the building, strengthening and safeguarding of democratic political institutions and processes at all levels.” [5] With 35 member countries and offices in 60 countries, they bring expertise in many major areas of the democratic process including campaign financing. [5]
Citizens United and Our Community
By unleashing unlimited—and, to a great extent, untraceable—contributions by special interest groups, corporations, and billionaires, Citizens United indirectly yet profoundly impacted immigrant communities in the U.S. This was done by reshaping immigration politics through funding opposition to pro-immigrant policies and reducing the influence of grassroots advocacy.
In spite of Citizens United and the unprecedented influence of money and billionaires in our elections, there are many politicians, from local to national levels, who have emerged as models of integrity by limiting their maximum contribution to as low as $28. It is no accident that the absolute majority of such elected officials or candidates support immigrant rights. It is also no accident that many of the most prominent elected officials in this group call for specific legislative measures, including a constitutional amendment to reverse Citizens United. They recognize that the influence of money and billionaires in politics go hand in hand with the rise of authoritarianism and anti-immigrant policies.
In these turbulent times, unity of our community and uniting with all immigrant communities in standing up for our rights gains more urgency every minute. While reversing Citizens United is and should be a long term goal for preserving American democracy, uniting all immigrant communities and supporting candidates with limits on their individual donations is the first step in strengthening American democracy.
References:
[1]- https://www.fec.gov/about/mission-and-history/
[2]- https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2823778
[3]-https://www.opensecrets.org/news/2025/01/by-the-numbers-15-years-of-citizens-united/
[4]-https://www.brennancenter.org/our-work/analysis-opinion/campaign-finance-system-americans-could-have-had#:~:text=Canada’s%20campaign%20finance%20rules%20interlock,stood%20by%2021%20years%20ago.
[5]-https://www.idea.int/sites/default/files/2025-05/International_IDEA_at_a_glance_2025_EN.pdf
