Would Citizens United v. FEC Be Decided the Same Way Today?

The Supreme Court held that the First Amendment prohibits the government from restricting independent expenditures for political communications by corporations, labor unions, and other associations. Justice Kennedy's 5-4 majority opinion struck down provisions of the Bipartisan Campaign Reform Act (McCain-Feingold) that prohibited corporations and unions from using general treasury funds for electioneering communications within 30 days of a primary or 60 days of a general election.

Citizens United has profoundly reshaped American campaign finance, enabling an explosion of spending by outside groups in federal, state, and local elections. The decision, combined with the D.C. Circuit's subsequent ruling in SpeechNow.org v. FEC, gave rise to super PACs—organizations that can raise and spend unlimited amounts of money on independent expenditures. Total spending in federal elections has increased dramatically, with outside spending reaching billions of dollars in recent presidential cycles.

The decision remains deeply controversial. Public polling consistently shows that large majorities of Americans across party lines oppose the ruling and favor greater regulation of money in politics. Several states and municipalities have passed resolutions calling for a constitutional amendment to overturn Citizens United, though no such amendment has advanced through Congress. The decision has become a cultural touchstone for concerns about the influence of wealthy individuals and corporations on democratic governance.

The current Court's composition creates genuine uncertainty about the decision's long-term survival. While the conservative majority that decided Citizens United has been maintained and even strengthened, the intensity of public opposition and the growing body of evidence about the effects of unlimited political spending on democratic governance could influence future considerations. However, the current majority appears committed to a robust reading of the First Amendment that extends full protection to political spending by corporations and other entities.

Citizens United presents a genuinely uncertain case for modern survival. On one hand, the current Court has a strong conservative majority that generally favors expansive First Amendment protections and skepticism of campaign finance regulation. The decision's core principle—that political speech does not lose First Amendment protection based on the identity of the speaker—resonates with the current majority's free speech jurisprudence. Recent decisions like Americans for Prosperity Foundation v. Bonta (2021) have continued to expand First Amendment protections in related contexts.

On the other hand, the decision has faced sustained and growing criticism from across the political spectrum. The practical effects of unlimited political spending—including the rise of dark money, the potential for foreign influence laundered through domestic organizations, and the distortion of democratic representation—have generated broad public support for reform. If the Court's composition were to shift, Citizens United could be vulnerable to reconsideration.

The stare decisis analysis for Citizens United is complex. The decision itself overruled Austin v. Michigan Chamber of Commerce (1990) and parts of McConnell v. FEC (2003), demonstrating that the Court does not treat campaign finance precedent as sacrosanct. A future Court inclined to reverse Citizens United could invoke the same reasoning—that changed circumstances and the workability of the existing framework justify departing from precedent.

The most likely near-term scenario is that Citizens United remains good law but faces incremental limitations. The Court may uphold certain disclosure requirements, restrictions on foreign spending, or other regulatory measures that do not directly contradict the core holding. A full overruling would require a significant shift in the Court's composition and would raise substantial questions about the scope of First Amendment protection for political speech.

The scholarly debate about Citizens United engages fundamental questions about the nature of the First Amendment and the relationship between money and speech. Defenders of the decision, including Eugene Volokh and Floyd Abrams, argue that political spending is a form of protected expression and that the government cannot be trusted to regulate political speech without favoring incumbents and established interests. They contend that any distinction between media corporations (which are exempt from campaign finance laws) and other corporations is unprincipled and that the proper remedy for speech one disagrees with is more speech, not regulation.

Critics, including Lawrence Lessig and Richard Hasen, argue that Citizens United conflates the concept of free speech with the ability of the wealthiest actors to dominate political discourse. Lessig's work on 'institutional corruption' contends that unlimited political spending creates a system of dependence that undermines representative democracy, even in the absence of quid pro quo corruption. Zephyr Teachout's historical research challenges the majority's narrow definition of corruption, arguing that the Framers understood corruption broadly to include any undue influence on governmental decision-making.

• McCutcheon v. FEC (2014)
• Americans for Prosperity Foundation v. Bonta (2021)
• Arizona Free Enterprise Club v. Bennett (2011)
• SpeechNow.org v. FEC (2010)
• Buckley v. Valeo (1976)