Luke Sharrett/The New York Times

We will be updating this discussion with additional commentary throughout the day. Scroll down to read Christopher Cotton, Heather K. Gerken, Eugene Volokh, Richard L. Hasen, Joel Gora, Michael Waldman and Fred Wertheimer in the forum.

A bitterly divided Supreme Court ruled on Thursday that the government may not ban political spending by corporations, labor unions or other organizations in elections. The court’s majority in Citizens United v. Federal Election Commission swept aside a century-old doctrine in election law, ruling that the campaign finance restriction violated the First Amendment’s free speech principles. The dissenters said opening the floodgates to corporate money will corrupt democracy.

How will this decision play out in American politics?



Update | Jan. 22, 1:20 p.m.

Help for Challengers?

Christopher Cotton is an assistant professor of economics at the University of Miami School of Business.

Critics of the court’s decision in Citizens United say that deep-pocketed interests (the oil, electricity, and telecommunications businesses, for example) have been given a dangerous level of influence over election outcomes. It is true that the absence of spending limits increases the likelihood of politicians accepting campaign funding for policy favors. But the overall impact may be less harmful than critics fear.

More challengers, with the support of corporations and unions, may be able to mount viable campaigns against incumbents.

Campaign spending has less of an impact on election outcomes than most people think. Academic research has not found much of a link between increases in a candidate’s campaign spending and increases in the probability of the candidate winning the election. Of course, candidates need some amount of financing to run a viable campaign.

Read more… But, once they are already spending large sums of money, additional campaign spending has little effect (one study by Steven Levitt found that campaign spending in Congressional races had very little impact on election outcomes). There may be very little difference between seeing eight ads or seeing nine ads (compared to seeing one ad or two). And, voters recognize that richer candidates are not necessarily the better candidates, and in some cases, the benefit of running more ads is offset by the negative signal that spending a lot of money creates. At the national level at least, the voters can see how much of a candidate’s money comes from individual donors, and how much comes from businesses, lobbyists, and other big-money sources. In 2008, for example, Mr. Obama received a lot of positive media attention because of the perception that his fund-raising efforts were grassroots based. I doubt that the media (and voters) would have reacted in a similar fashion if the bulk of pro-Obama advertisements were paid for by the energy industry. In fact, there is a chance that the Citizens United decision could improve electoral competition. It may allow more challengers, with the support of corporations and unions, to mount viable campaigns against incumbents, who have an inherent fund-raising advantage. And it could weaken the power of party leaders, who control campaign funds, to have elected officials hew to the party line. That may change if other deep-pocketed supporters play a bigger role in elections.



Update | 8:20 p.m.

A Silver Lining

Heather K. Gerken is the J. Skelly Wright Professor of Law at Yale Law School.

Reformers are outraged by the Supreme Court’s decision, which overruled its own precedent on independent corporate expenditures. As Nate Persily points out, as a practical matter the decision was just the last nail in the coffin; the Supreme Court had already substantially undermined the federal ban on independent corporate expenditures in earlier decisions.

Rather than trying to limit the power of money in politics, we should harness money’s power to fix politics.

The court has done real damage to the cause of reform, but that damage mostly came earlier, with decisions that made less of a splash.

There may be a silver lining to this rather dark cloud, however. For a long time, reformers have tried hard to take money out of politics, to shield democracy from the corrupting influence of money. In a system like ours however -– where reform is piecemeal and public financing is generally not a viable option –- the results have been underwhelming. Money hasn’t been taken out of politics; donors simply find new, less transparent ways of influencing the process.

Read more… Perhaps Citizens United –- which may impose limits on Congress’s power to regulate that extend well beyond corporate spending — will push reform in a new direction. Rather than trying to limit the power of money in politics, we should harness money’s power to fix politics. For example, matching rules for small donors (which convert a $20 donation into, say, $100 or $200) give politicians a reason to reach out to working-class and middle-class voters. While campaign finance has always tried to level down — restricting the ability of the monied to influence politics — the better strategy going forward may be to level up by giving everyday voters a bigger say.



Update | 3:30 p.m.

More Messages, More Sources

Eugene Volokh is a professor of law at the University of California, Los Angeles. He is the founder and co-author of The Volokh Conspiracy blog.

Corporate money has already long been in politics; the most influential actors in most political campaigns are corporations. I speak here of media corporations, such as the one that owns the New York Times.

The decision simply means that corporations, and unions, will enjoy the same First Amendment rights that media corporations have had all along.

These corporations overtly editorialize for and against candidates, and also influence elections by choosing what to cover and how to cover it. Even if many newspapers usually try to be neutral in their treatment of candidates outside the editorial pages, many opinion magazines (which are generally owned by corporations) don’t even aspire to such neutrality. And of course this means that media corporations and their owners and officers have tremendous power, far greater than what a typical voter (even a typical rich voter) would have.

The Supreme Court’s Citizens United decision simply means that other corporations, and unions, will enjoy much the same First Amendment rights that media corporations have. My guess is that most business corporations will not exercise those rights to nearly the same extent that media corporations have.

Read more… Among other things, if (say) Exxon were to speak in favor of some candidate, that fact might well alienate so many voters that Exxon’s speech would prove counterproductive. In any event, the court decision means that voters will have more messages from more sources — including wealthy unions and wealthy corporations -– to supplement the messages they already get from wealthy media corporations, wealthy political parties, wealthy advocacy groups, and wealthy individuals, as well as from not-so-wealthy neighbors, bloggers, and others. The case, which involves a documentary called “Hillary: The Movie” produced by Citizens United, a conservative nonprofit corporation, is also a reminder that “freedom of the press” doesn’t apply just to a particular industry. People and corporations that publish newspapers or make movies or TV programs full-time have no greater First Amendment rights than those who write books, print leaflets, or make movies as a sideline from their ordinary business lives. The freedom of the press simply means that mass distribution technology (whether old, such as books, or new, such as the Internet) gets the same protection that in-person speech does.



Update | 3:00 p.m.

Bad News for Judicial Elections

Richard L. Hasen is the William H. Hannon Distinguished Professor of Law at Loyola Law School, Los Angeles and the co-editor of the Election Law Journal.

I have many thoughts about what is wrong with today’s Supreme Court opinion: it is activist, it increases the dangers of corruption in our political system and it ignores the strong tradition of American political equality. The way the opinion is written will make it very hard for Congress or state legislatures to put effective controls on money in campaigns, or even adopt effective public financing laws.

Can we count on impartial judges when corporate money floods into judicial races?

But I want to focus on the special problem that now arises for judicial elections. Just last term, Justice Kennedy (who also wrote today’s majority opinion in Citizens United), recognized the inherent risk of corruption that comes when someone spends independently to try to influence the outcome of judicial elections.

In Caperton v. A.T. Massey Coal, Justice Kennedy recognized the potential for bias of a judge whose election victory was helped by a $3 million independent contribution favoring the judge. He wrote the contributions created a “risk of actual bias” so “substantial” that due process required setting aside the court’s decision.

Read more… Today’s decision casts all that aside, engaging in the fiction that candidates do not feel beholden to those who engage in large, independent spending favoring the candidates (or bashing their opponents). This is a bad enough fiction to apply to elections for accountable elected officials; it is much worse to apply to judicial elections, where we count on the impartiality and fairness of the judges hearing our cases. Justice Kennedy backed away from Caperton today, leading Justice Stevens to note in dissent that Citizens United “unleashes the floodgates of corporate and union general treasury spending in [judicial] races.” The ways out of this box are not easy to see. Corporate spending limits are effectively off the table. Disclosure alone is unlikely to get enough attention, particularly for a public that pays scant attention to judicial races. Recusal motions against particular judges are going to be hard to win. Even if the court is willing to entertain a fiction about the role of large, independent corporate and union spending plays in the campaigns, those in the public paying attention will not be fooled. Short of getting rid of judicial elections (a tall order in most jurisdictions), things are going from bad to worse.



Update | 2:10 p.m.

Restoring Free Speech in Elections

Joel M. Gora, a professor at Brooklyn Law School, has been a long-time lawyer for the American Civil Liberties Union and argued before the Supreme Court in Buckley v. Valeo (1976). He is the co-author of “Better Parties, Better Government: A Realistic Program for Campaign Finance Reform.” The views expressed here are solely his own.



This is a great day for the First Amendment. The Supreme Court has invalidated a ban which prohibited all corporations and all labor unions from speaking out about government and politics in any way that even mentioned a politician or an incumbent officeholder running for election.

At last, a decision that dismantles a government bureaucracy that chilled political speech all over the country.

In ruling this ban unconstitutional, the Court emphasized what no one seriously disputes: the primary purpose of the First Amendment’s guarantees of freedom of speech, press, assembly and petition is to enhance democracy by insuring an informed electorate capable of self-government.

The First Amendment has always been based on the idea that the more speech we have, the better off we are, as individuals and as a people. The Citizens United case eloquently reaffirms and reinforces that core constitutional principle.

Read more… In the course of doing so, the decision restores a number of key First Amendment principles which have become obscured in the zeal to “reform” our elections. First, we should never have to get the government’s advance permission in order to criticize the government. Yet our incredibly complex system of campaign finance rules and regulations — about who can speak and what can be said and when it can be said — presided over by the government bureaucrats at the Federal Election Commission, and backed up by criminal and civil penalties, has created, in effect, a de facto system of prior restraint which causes a chilling effect on political speech all over the country. That system of prior restraint was reminiscent of the royal system for licensing the press that our founders wrote the First Amendment to avoid. And the chilling effect on speech that system caused, with people fearful that their ad in the newspaper criticizing the president of the United States might somehow be deemed illegal, was anathema to First Amendment values. Now the Supreme Court has swept all of those restraints away and allowed any group to speak out on the core political issues of the day on behalf of its members, contributors, shareholders, employees and the like. In the process, the court also dismantled the First Amendment “caste system” in election speech.

Before today, the right to speak depended on who was doing the speaking: business corporations, no, unless they were media corporations; non-profit corporations maybe, depending on where they got their funding; labor unions no. At the state level there was also a crazy-quilt system, with half the states allowing corporations and unions to speak out about politics and the other half not. That’s all gone now. The court made clear: the right to speak cannot depend on the identity of the speaker. Under the First Amendment, there can be no second-class speakers. Finally, the decision reconnects with the classic First Amendment tradition bequeathed to us by Justices like Holmes and Brandeis, Black, Douglas and Warren who were the great champions of free speech and understood that First Amendment rights have to be universal and indivisible. The court today quoted from a 1957 opinion involving labor union speech which perfectly captures the essence of today’s ruling: “Under our Constitution it is We The People who are sovereign. The people have the final say. The legislators are their spokesman. The people determine through their votes the destiny of the nation. It is therefore important — vitally important — that all channels of communication be open to them during every election, that no point of view be restrained or barred, and that the people have access to the views of every group in the community.” That 1957 opinion concluded that deeming a particular group “too powerful” to be allowed to speak was not a “justification for withholding First Amendment rights from any group — labor or corporate.” These words were written by Justices Black, Douglas and Warren, perhaps the three greatest liberals who ever sat on the Supreme Court. When the campaign “reform” groups gnash their teeth about how terrible today’s decision is for democracy, remind them of what great liberal champions of free speech and democracy would think about that.

Bigger Than Bush v. Gore

Michael Waldman is executive director of the Brennan Center for Justice at N.Y.U. School of Law, and author, most recently, of “A Return to Common Sense: Seven Bold Ways to Save our Democracy.”

This decision by the Supreme Court may well dwarf in impact the results of Tuesday’s election in Massachusetts. It is breathtaking in its scope: it overturns doctrine dating back a century and laws upheld in 1990, that banned corporate managers from directly spending shareholder money in elections.

A Constitutional amendment may be needed to restore the law to where it was at 9:50 this morning.

There was no trial record; no reason to reach the decision; a rushed re-argument (followed by a delay that put this neutron bomb square into the middle of the political season). This matches or exceeds Bush v. Gore in ideological or partisan overreaching by the court. In that case, the court reached into the political process to hand the election to one candidate. Today it reached into the political process to hand unprecedented power to corporations.

The ban on direct corporate spending in elections goes back to the 1907 Tillman Act, which prohibited corporate contributions in federal campaigns (it was assumed to cover independent expenditures, too). In 1947, the Taft-Hartley law made explicit that corporations and unions could not directly spend their treasury funds on electioneering. Congress -– every time it has passed a law to deal with this -– only has strengthened this prohibition.

Read more… Why will this matter? Isn’t there a lot of money sloshing around in politics already? Consider Exxon-Mobil. In 2008, its political action committee (PAC) raised about $1 million from its employees and offices. Its profits that year -– which it was legally barred from pouring into politics -– were $45 billion. It was illegal for Exxon to spend that money on elections; now with this decision, it will be legal. Exxon or any other firm could spend Bloomberg-level sums in any congressional district in the country against, say, any congressman who supports climate change legislation, or health care, etc. What can be done to prevent this outcome? Given the huge power of corporations to tilt policy, at the very least it may make sense to pass laws saying that corporations and unions with government contracts cannot spend unlimited sums on campaigns. (Good luck getting that one through a cloture-proof Senate.) Shareholders, at the very least, should have to approve such political spending (which also would require changes in state or federal law). Possibly, a Constitutional amendment may be needed to restore the law to where it was at 9:50 this morning (and where it had been for the previous century). One approach is to press for public funding, including an innovative plan to boost the power of small donors by matching the gifts of small donors. It won’t come close to matching the massed funds of corporate interests that will now once again dominate elections -– but it will offer voters and candidates a chance to build an island of workable democracy in a sea of special interest money. And we need myriad other reforms to strengthen our democracy, such as voter registration modernization to assure that every single eligible citizen is registered to vote. To counter the flood of new money, let’s assure there are millions of new voters.

An Electoral Catastrophe

Fred Wertheimer is the founder and president of Democracy 21, a nonpartisan, nonprofit organization that works to promote campaign finance reform and other political reforms. He is a lawyer on the amicus brief filed in the case by the Campaign Legal Center and Democracy 21.

Today’s Supreme Court decision in the Citizens United case is a disaster for the American people. It will unleash unprecedented amounts of corporate “influence-seeking” money on our elections and create unprecedented opportunities for corporate “influence-buying” corruption.

The only change that has occurred since the earlier rulings is the makeup of the court itself.

In a stark choice between the right of American citizens to a government free from influence-buying corruption and the economic and political interests of American corporations, five justices came down in favor of corporations. Chief Justice Roberts has abandoned the illusory public commitments he made to “judicial modesty” and “respect for precedent” to cast the deciding vote for a radical decision that profoundly undermines our democracy.

The constitutionality of the corporate spending ban was never even raised by the plaintiffs in the lower court consideration of this case. Instead, the justices, on their own, opened up the case to the broader constitutional question, when they could have decided the case on narrower grounds without eliminating more than 100 years of national policy.