By Dan Tokaji, Professor of Law, Ohio State University, Moritz College of Law. Professor Tokaji is also a member of the ACS Board of Directors. This post is part of an ACSblog symposium marking the one-year anniversary of the landmark decision in Citizens United v. FEC.
Contrary to popular belief, the most significant aspect of last year's Citizens United v. FEC was not its conclusion that corporations have free speech rights. The Supreme Court actually settled this question long ago. Nor is the main problem the influx of anonymous corporate spending on federal elections. Citizens United may have exacerbated this problem, but it existed before - and, at any rate, identification of big spenders can be addressed through tougher disclosure and reporting laws.
The most significant and damaging aspect of the Citizens United decision was its obliteration of equality as a rationale that may sometimes justify limits on political spending. Overruling this aspect of the decision is a precondition to real campaign finance reform. In thinking about what can be done to promote political equality, the United States would do well to consider Canada's example.
Citizens United was correct to affirm that campaign-related expenditures - whether made by corporations or by individuals - have an expressive quality that warrants some degree of constitutional protection. Where the Court erred was in failing to recognize the consequences of the fact that money is essential to political participation. If effective electoral speech requires money, then those without money lack an equal voice in our democracy. The ultimate consequence is to skew political debate in favor of the wealthy, both in terms of who gets elected to office and the decisions they make once in office. This is anathema to a democracy committed to the principle of "one person, one vote." In effect, the have-alots have a much greater say in our political system than the rest of us.
Students of American campaign finance law might note that Citizens United's rejection of equality is nothing new. That is partly true. Since Buckley v. Valeo (1976), the Court has purported to forbid campaign spending restrictions designed to promote equality. Buckley famously prohibited government from "restrict[ing] the speech of some elements of our society in order to enhance the relative voice of others." On this basis, the Court struck down limits on individual expenditures in federal campaigns.