This post is part of an ACSblog online symposium marking the one-year anniversary of the landmark decision Citizens United v. FEC. The author, Richard L. Hasen, is a Visiting Professor at UC Irvine School of Law and author of the Election Law Blog.
When the Supreme Court decided Citizens United v. FEC, arguably the most controversial decision of the Court since Bush v. Gore, observers offered a variety of predictions about what the post-Citizens United world allowing unlimited corporate and labor union spending in candidate elections would look like. Some thought corporations would be in a position to buy election results, or, as President Obama said, to "drown out the voices of ordinary Americans." Others thought the decision would not have much impact, because earlier Supreme Court decisions, including the Court's opinion in FEC v. Wisconsin Right to Life, had already made it much easier for corporations and labor unions to influence the outcome of candidate elections. Early empirical studies are still sorting out the effect of the case on the 2010 elections, and there's much speculation about how the case will play out in the 2012 presidential elections.
Justice Kennedy, author of the majority opinion in Citizens United, offered his own vision of the post-CU world within the case itself. He envisioned free exchange of ideas in a democratic marketplace, coupled with complete and instantaneous disclosure of campaign contributions and expenditures over the Internet: "A campaign finance system that pairs corporate independent expenditures with effective disclosure has not existed before today...With the advent of the Internet, prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions and supporters."
Whether Justice Kennedy believed that existing campaign finance disclosure law would provide for this free and instantaneous exchange of information about campaign money or whether he was instead advocating that Congress adopt such a system is unclear. What is clear, however, is that Citizens United has not only unleashed new money into the election process; actions by lower courts and the FEC, combined with an inadequate disclosure regime, have led to a system of largely undisclosed corporate, union, and individual campaign contributions flooding into elections.