January 14, 2020
Citizens United Made My Career: I Wish It Had Never Happened
Professor of Law at Stetson University College of Law, a fellow at the Brennan Center, author of the book Political Brands
Hear more from this author in the video recording of ACS's January 17 panel discussion: Revisiting Campaign Finance Regulation 10 Years After Citizens United.
Citizens United made my career. I would have preferred a healthy democracy. When I gave my job talks to become a professor of law, the topic was Citizens United. Since 2010, I have written 11 law review articles and 2 books (Corporate Citizen and Political Brands) about Citizens United and its aftermath. I’ve been invited to talk about Citizens United over 50 times around the nation including by ACS on January 16, 2020. Those who found it objectionable the day it was decided are still dismayed by it a decade later and still want to undo it or mitigate it.
Twelve years ago I was a junior lawyer at the Brennan Center when the Supreme Court took the Citizens United v. FEC case. I went out on maternity leave in 2008. When I came back to work, Citizens United was scheduled for re-argument at the Supreme Court. I spent the summer of 2009 helping to corral amici to write Supreme Court briefs and rushing home on the subway to relieve my childcare provider. But looking back I’m glad I was able to work on the amici effort. A brief from the Sunlight Foundation argued for transparency. The final opinion written by Justice Kennedy adopted many of the Sunlight Foundation’s arguments.
I attended the re-argument of Citizens United in the gallery of the Supreme Court with my fellow lawyers from the Brennan Center. I remember feeling like I was watching democracy die among high pillars and velvet drapes. Ted Olson said something lame. People laughed. Justice Scalia said something even more lame. People laughed harder. Elena Kagan, the solicitor general, backtracked on an absurd position that her predecessor, the acting solicitor general, had made in the first oral argument. People laughed again. By the time Seth Waxman got up to add a few points about Elihu Root, the oxygen had already left the room. The fix was in. It was a forgone conclusion that the Supreme Court was about to tear up decades if not centuries of laws that had kept corporations out of politics in federal elections and over twenty state elections. All we had to do between September 9, 2009, and January 21, 2010, was wait for the guillotine to fall.
While the case was pending at the Supreme Court for two years, I wrote a white paper about the worst-case scenario of what the Supreme Court could do in Citizens United. When the case came out, all I had to change were the verb tenses. The Supreme Court’s Citizens United decision gave all corporations the right to spend unlimited amounts of money buying unlimited political ads in all Americans elections henceforth.
Staffers in Congress noticed my white paper and invited me to testify. I told members of Congress that Citizens United presented two big problems for investors: a lack of transparency and a lack of consent. The transparency problem is now known under the umbrella of “dark money” which cannot be traced back to its original source, whether that source is human or corporate. The consent problem is that unlike shareholders in the UK, shareholders in the US are not given a chance to vote on corporate political spending.
Looking back at the decade between 2010 and 2020, I see that there were many ways for corporations to damage democracy and democratic norms—not all of which are traceable to Citizens United, but many which are.
The greed of corporations often makes them devalue the very people who work for them and corporations use their political clout to get their way. For example, corporate interests have worked to roll back increases in the minimum wage including urging the DC City Council to repeal an initiative by voters to increase the subminimum wage for tipped workers. Voters made it clear in June 2018 they wanted the higher wage. As Think Progress reported at the time, “the D.C. Restaurant Industry and its lobbyists have contributed more than $236,000 to the campaigns of current councilmembers and D.C. Mayor…” Businesses, including the National Restaurant Association, had the muscle to overrule their votes on wages by October 2018. The National Restaurant Association has also voiced its opposition to raising the federal minimum wage.
The fight over DC’s minimum wage wasn’t the only local election where corporations threw their weight around. In 2014, Chevron tried to buy a mayoralty and city council seats in Richmond, California. But this ended up backfiring when Chevron’s political spending became a national story and the Chevron-backed candidates lost.
Corporations also tried to put a thumb on the scale of justice in state judicial elections and empirical data from Professor Joanna Sheperd showed disturbingly: “There is a significant relationship between business group contributions to state supreme court justices and the voting of those justices in cases involving business matters. The more campaign contributions from business interests justices receive, the more likely they are to vote for business litigants appearing before them in court.”
Then there is the tax dodging. From 2010-2020 Apple was the poster child for dodging U.S. taxes. But Apple wasn’t alone. Corporations lobbied heavily for the Trump tax cuts. According to a study by ITEP, 60 companies paid zero taxes in 2018. Not surprisingly, the big winner from the Trump tax cuts were corporations. The last cut in the corporate tax rate had been in 1993. For a group that wants to have the rights of U.S. citizens, they don’t appear ready to do what every tax paying person does: chip in.
Business interests have also worked to undo campaign finance reforms that voters wanted. In November 2016, North Dakota voters voted for an initiative to provide public financing in elections. But the state legislature repealed the measure and the governor signed the repeal into law by February 2017. The opponents of this change included American for Prosperity, a group linked to Charles Koch of the Koch Brothers and Koch industries.
And then there’s what I can only call the “Facebook problem.” Facebook is number 57 on the Fortune 500. I’ve seen computer scientists at DEF CON to professors at the Association of American Law Schools lament the “Facebook problem.” And people characterize the problem in a variety of ways ranging from the way that Facebook allows advertisers to target subsets of the population, to the ways that Facebook allows for manipulation of its users, to Facebook’s disregard for users’ privacy. But all of these issues may be outweighed by the decision by Facebook’s founder Mark Zuckerburg to allow lies in political ads during the 2020 election. This can only hurt democratic discourse.
Finally, as I detail in my book Political Brands, the Trump Organization brought a whole new level of corporate conflicts of interest into the White House including ongoing violations of the domestic and foreign emoluments clauses. If the original fear was corporate money flowing into the political system, the Trump Organization has shown that political money flowing into corporations can be just as problematic.
Could all of this have happened without Citizens United? Possibly. It’s hard to know the counterfactual. But Citizens United seemed to encourage corporations to be aggressive in politics and to be brazen about conflicts of interest that benefited corporations over workers, customers, investors, and citizens. After Citizens United, politicians always have to fear that if they go against corporate interests, that they will reap the whirlwind of corporate wrath in the next election.
Citizens United made my career. I wish it had never happened.