Implications for Representative Democracy (p

“What Should Be Done about DACA?” Anti-Defamation League. Accessed March 2021.

https://www.adl.org/education/educator-resources/lesson-plans/what-should-be-done-about

-daca.

Citizens United and Its Implications for Representative Democracy

Annah Hillary

University of Colorado Denver

Fall 2021

Abstract

This thesis explores the 2010 Citizens United v. FEC Supreme Court decision and its

effects on American representative democracy. I explore democratic theory to establish an

understanding of the theoretical goals of representative democracy. I conduct a legal analysis of

campaign funding regulations and Supreme Court cases leading up to and following the Citizens

United decision. I conduct a literature review containing political science and law review journal

articles as well as books. I argue that the protections afforded by Citizens United to corporate

speech contribute to modern vote dilution of the majority of U.S. citizens who do not belong to

the rather exclusive wealthy class. I find violations of theoretical democratic principles in both

equal representation and participatory equality following Citizens United, and I suggest holdings

by the Supreme Court that should be revisited to protect the voices of individual citizens and

allow the continuation and flourishing of Amerin representative democracy.

I. Introduction

The American governmental system is a representative democracy. Citizens elect the

officials that will represent them in official governmental roles. The U.S. Constitution outlines

basic rules regulating elections, for example, minimum ages and residency qualifications, but

lacks guidelines to ensure equality within its representative process. Thirty out of fifty state

Constitutions, including Arizona, California, and Colorado, explicitly provide for free and fair

elections, banning obstructions to electoral processes. The Constitutions give specific protections

to ensure a free and fair election while the other twenty states do not have these provisions.

The United States’ Constitution does not expressly provide for these electoral protections,

as they fall under state powers, and for this reason, elections have been the subject of extensive

litigation throughout history. The United States has a long history of voter suppression and

disenfranchisement, namely against women, black citizens, and felons,1 and the Supreme Court

ruling in Citizens United v. FEC (2010), I argue, further diverges the electoral processes of the

United States from being free and fair.

Representative democracy can be defined as a government in which “the source of laws

and public policies is a collection of officeholders who have attained office by winning contested

elections.”2 In a representative democracy, it is essential that a government ensures participatory

equality within its electorate, meaning that all members with voting or campaigning capabilities

are met with equal opportunities when voting or running for office. For a governmental system to

ensure democracy is fair, the electorate and political candidates should be on an equal playing

field in terms of their abilities to secure a campaign victory and vote in an election. American

1 At the inception of the United States, only white, property-owning men were permitted to participate in elections. Present day, all men and women of any race and property status are permitted to vote. However, barriers still exist to electoral participation through restrictions placed on identification requirements, locations of polling places, and more.Additionally, any citizen with a felony conviction is barred from participating in elections. 2 G. Kateb, “The Moral Distinctiveness of Representative Democracy, ” Ethics, special issue: symposium, 9, no. 3 (1981): 35.

citizens have long been plagued by vast income inequalities, with the wealthy elite constituting a

minority group while middle- and lower-class citizens make up the majority of the population.

Accentuating these trends of inequality, American elections have been, in recent times, heavily

influenced by the opinions and ideals of the wealthy minority through campaign funding.

In 2010, the Supreme Court decided Citizens United v. FEC, holding that limitations

placed on independent expenditures made by corporations, labor unions, or other entities violated

the First Amendment on grounds that these types of restrictions constituted restraint on free

speech. At face value, the court’s reasoning makes sense as protecting speech is a foundational

goal of the U.S. Constitution, but I will argue that allowing collective entities the same

constitutional protections as individual citizens violates principles of representative democracy. I

argue that this decision changed the shape of American elections and grants protection of speech

for wealthy corporations while effectively limiting the speech of individual citizens, violating

both the letter and spirit of the Constitution.

In this thesis, I seek to explore the connection between the Citizens United decision,

which granted corporations protected free speech, and the democratic principles regarding free

and fair elections. I argue that the democratic principle affording all citizens equal opportunities

to run for office is vastly reduced by the wealthy elite being able to obtain these positions more

often and easily than the non-elite majority. I argue that affording wealthy corporations, and the

wealthy citizens who own and operate them, threatens American representative democracy,

particularly when considering equal representation and free, fair, and impartial elections. I seek

to explore whether the privileges afforded to the wealthy minority give way to the emergence of

a plutocracy in American government and the ways in which Citizens United led the way for this

divergence from representative democracy.

Citizens United, among other cases relating to campaign financing laws, argued the

validity and legality of imposing regulations on campaign contributions. The most important

types of contributions for this study are independent expenditures, intermediaries, and direct

contributions. An independent expenditure is a type of communication that expressly advocates

for the election or defeat of a specific candidate. An intermediary is a person or entity that

obtains funding for a political campaign without being officially designated by the respective

political campaign to raise money for it. Examples of intermediaries include PACs and Super

PACs. A direct contribution is money given directly to a political campaign from an individual.

These are not the only types of political funding, but for the purpose of this thesis, these are the

types I will be examining.

First, I will introduce Citizens United alongside political theory regarding democratic

principles. Second, I will build a historical legal framework of Supreme Court decisions and

congressional legislation leading up to Citizens United, including the Voting Rights cases of the

1960’s and vote dilution. Third, I will provide a literature review on the topics of Citizens United

and theoretical democratic principles relating to representative democracy. I will explore

opposing viewpoints from authors who support Citizens United. Fourth, I will discuss my

findings from my research to make my argument regarding the ways in which Citizens United

has affected American elections and shed light on the diminishment of American representative

democracy. In the conclusion, I will show how Citizens United contributes to modern vote

dilution and works against theoretical principles of representative democracy.

II. Citizens United and United States’ Representative Democracy

Citizens United was a result of the ban on corporate funding for political communications

that expressly advocated for a candidate or party during the weeks or months leading up to a

federal election. The Bipartisan Campaign Reform Act (BCRA) of 2002 enacted the ban in an

attempt by Congress to regulate campaign funding by wealthy corporations. After Congress

signed the BCRA into law, numerous suits were filed in multiple District Courts to challenge it.

Later, I provide a breakdown of the precedents leading up to Citizens United regarding campaign

finance laws, but first, I provide an understanding of principles of representative democracy and

how they relate to my case study of Citizens United.

One of the foundational goals of representative democracy is to ensure that elections are

“free and fair.” In a perfectly democratic society, all citizens that meet designated requirements

or competencies rationally related to public service (such as age or residency) would have equal

opportunities to run for political office and assurance that they have an equal playing field for

obtaining electoral victories. In a representative democracy, citizens elect government officials

who act upon the interests of their respective districts when making political decisions. The

terms for these elections vary, but a key principle for these governing systems is that all citizens

are represented equally and impartially.

Recent changes in jurisprudence surrounding campaign financing pushes the United

States into a dangerous territory that borders on plutocracy. In allowing corporations the same

protections as individual citizens under the First Amendment, the Supreme Court has effectively

allowed for the diminishment of American representative democracy by permitting corporate

voices to speak louder than the voices of individual citizens. When the “representation” in

representative democracy is skewed by vast gaps in social class and wage inequality, the

aspirational goals for this governmental system cannot be met as the voices of the wealthy

minority are enabled to more profoundly affect government policy and decision making than

those of the lower- and middle-class majority.

At the conception of American democracy, the Framers sought to develop a

governmental system that would protect private property and provide representation to its

property-owning citizens. The Federalists viewed full and equal representation dimly, and

Alexander Hamilton stated that representative democracy should be made of “gentlemen of

fortune and ability."3 On the contrary, Anti-Federalists argued that

full and equal representation is that in which the interests, feelings, opinions, and views of the people are collected, in such a manner as they would be were all the people assembled… every member of the union should have a freedom of suffrage and that every equal number of people have an equal number of representatives. 45

In the Federalist Papers Nos. 10 and 63, James Madison argued that representative

government was necessary to prevent political issues involving corrupt representatives who play

on their popularity to exploit voters and deter the election of representatives bent on venting

popular passions and prejudices by denying individual rights.6 While these parties were still

affected by common racial and gender discrimination, the goals aimed for more equality than

what was standard practice at that time.

The disagreements among the Framers in how representative democracy should be

achieved have carried into modern times. Unfortunately, the Federalist preference for a

democracy made of only the wealthy has manifested in the present-day United States. Ideally, a

representative democracy would provide equal representation for all its citizens by ensuring that

each citizen voice carries the same weight as their counterparts. A representative democracy is

theoretically fair and impartial, allowing equal opportunities for any eligible citizen based upon

objective reasonable criteria related to public service, to run for office or vote for their preferred

candidates in a meaningful manner.

3 D. M. O’Brien, Constitutional Law and Politics, 1, W.W. Norton & Company, 2014, 851. 4 While this is a direct quotation, it is important to acknowledge that at this time, “all people” most likely was meant to only include white, property-owning men. 5 D. M. O’Brien, Constitutional Law and Politics, 1, W.W. Norton & Company, 2014. 6 D. M. O’Brien, Constitutional Law and Politics, 1, W.W. Norton & Company, 2014, 852.

The goals of representative government are well articulated. Robert Dahl theorized that

the democratic process is required to make “effective participation” and voting equality available

to all adults in a society under which they will be governed.7 Effective participation is “an

adequate opportunity, and an equal opportunity, for expressing their preferences as to the final

outcome” of an election.8 Regarding “equal opportunity” to participate in the democratic process,

Dahl explains that differences in economic status and resources affect this opportunity as

“influence is a function of resources,” a concept of great interest to my study of Citizens United. 9

“Equality” is a cherished concept in American democracy, but history shows that the U.S.

government and wealthy elites have regularly excluded citizens based on race, education, sex,

age, property ownership, incarceration status, and economic status. When politics are heavily

influenced by affluence and economic status, equal representation cannot exist. Larry Bartels

suggests that “there are a variety of good reasons to suspect that policy-makers in real political

systems do not consider citizens as political equals.”10 The responsiveness of the American

government, as I will show later, is affected by political financial contributions. As theorized by

Bartels, the responsiveness of policy makers to the affluent constituents, as opposed to the public

majority, may “mask an undemocratic process in which most citizens’ opinions have little or no

bearing on policy outcomes.”11 His study further suggests that, in terms of equality in U.S.

democracy,

[w]ealthier and better-educated citizens are more likely than the poor and less educated to have clearly formulated preferences, more likely to turn out to vote, and significantly

7 R.A. Dahl, Democracy and Its Critics. New Haven, Ct: Yale University Press, 1989, 109. 8 R.A. Dahl, Democracy and Its Critics. New Haven, Ct: Yale University Press, 1989, 109. 9 R.A. Dahl, Democracy and Its Critics. New Haven, Ct: Yale University Press, 1989, 112. 10 L.M. Bartels, Unequal Democracy: The Political Economy of the New Gilded Age. New York Russell Sage Foundation, 2018, 234. 11 L.M. Bartels, Unequal Democracy: The Political Economy of the New Gilded Age. New York Russell Sage Foundation, 2018, 234.

more likely to have direct contact with public officials and to contribute money and energy to political campaigns. 12

Because politicians are aware of these factors, it is logical to assume that there is a notable

difference between the treatment of wealthy and educated citizens and those who are poor and

uneducated. The indifference directed towards American voters who are unable to fund political

campaigns contributes to voter apathy, further reducing the civic participation of non-affluent

citizens in the United States.13

Article 2 of the U.S. Constitution provides requirements for running for president. It

states that any natural born citizens or citizens of the United States who are at least thirty-five

years old and have lived in the United States for fourteen years are eligible to run for president.

Considering equality, this means that any citizen who meets these requirements should be able to

conduct an election campaign with a fair chance to win the presidency. American elections are,

in our mythic tradition, intended to be equal and merit-based and ideally would not be reserved

so that only elite members of society may hold office. However, as stated by Manin, an “election

would benefit conspicuous or prominent citizens, those who practiced the most prestigious or

influential professions, the most talented, or simply the wealthiest.”14 Manin’s theory has shown

to be true in the United States, where candidates are enabled to secure election victories only due

to their social prominence or wealth.

Also argued by Manin, “not every citizen has an equal chance of exercising political

power, even if no one was prevented by law from running for office.”15 He explains that “running

for office is not subject to any restriction, but… candidates may be treated in an inegalitarian

12 L.M. Bartels, Unequal Democracy: The Political Economy of the New Gilded Age. New York Russell Sage Foundation, 2018, 234. 13 M.C.Alexander, “Citizens United and Equality Forgotten, ” New York University Review of Law and Social Change 35, no. 3 (2011): 499-526. 14 B. Manin, The Principles of Representative Government, Cambridge: Cambridge University Press, 1997, 133. 15 B. Manin, The Principles of Representative Government, Cambridge: Cambridge University Press, 1997, 134.

fashion.”16 These candidates not only face unequal treatment from voters, but also when

soliciting campaign donations. As American election campaign funding continues to grow

exponentially, the ability of average citizens to run a successful campaign dwindles, and equality

in civic participation fades along with it. While there are examples throughout American history

of presidents or senators who came from humble means obtaining an elected office, such as

Richard Nixon, Bill Clinton, and Barack Obama, they were still required to fund their campaigns

through wealthy donors who agreed with their ideals or principles.

Representative democracy requires participatory equality to function properly. If all

citizens are not enabled to affect democracy in equal ways as their wealthy or poor counterparts,

democracy cannot survive. In the United States, economic inequality provides a gap in voter

demographics too large to ignore.17 It is commonly thought that while the rich contribute money,

the poor contribute time. I disagree with this sentiment in modern times, as the poor are often

required to work multiple jobs to survive, thus leaving them with no time to participate in

politics. A 2014 study by Martin Gilens and Benjamin Page found that “economic elites and

organized groups representing business interests have substantial independent impact on United

States government policy, while average citizens and mass-based interest groups have little or no

independent influence.”18 Knowing the impact that affluence has on public policy, U.S.

representative democracy seems to be failing more each election cycle as the price of running a

campaign continues to rise.19

16 B. Manin, The Principles of Representative Government, Cambridge: Cambridge University Press, 1997, 136. 17 From 1991 to 2000, the mean income for the top 5% of families grew at an annual average of 4.1% compared with about 1% or barely more for other families. Families in the top 5% have experienced greater gains that other families since 2011.Agreater share of nation’s aggregate income is now going to upper-income houses and the share going to middle- and lower-income households is falling. (Horowitz, et al., 2020). 18 M. Gilens & B. I. Page, “Testing Theories ofAmerican Politics: Elites, Interest Groups, andAverage Citizens, ” Perspectives on Politics 12, no. 3 (2014): 576. 19 Federal election spending in 2008 cost $5.1 billion dollars. In 2012, following Citizens United, it cost $6.2 billion dollars. The 2020 election topped any election cost in history, totaling $14.4 billion dollars. (Evers-Hillstrom 2021).

American democracy provides for a majority rule in election outcomes, but in terms of

actual policy results, it seems that the interests of the elite prevail. Gilens and Page found that

“when the preferences of economic elites and the stands of organized interest groups are

controlled for, the preferences of the average American appear to have only a miniscule,

near-zero, statistically non-significant impact upon public policy.”20 With non-elite Americans

making up the large majority of voters, the implications of affluent voters providing funding to

politicians can be seen when considering the lack of influence average votes have on policy

outcomes in America. With corporations being afforded the same protections as individual

citizens for campaign speech, the voices of the average American will continuously be drowned

out.21

With cases such as Citizens United, the American governmental system strays away from

a representative democracy and leans more towards a plutocracy, a governmental system that is

run by only the wealthy. Within a plutocracy, power and wealth are directly related, and non-elite

citizens do not participate in control of the government. While America is theoretically run on a

majority rule system, the power of the minority economic elite continuously overshadows the

voices of the majority lower- and middle-class citizens. In political systems, money is often the

equivalent of power, and in the U.S., the wealthy hold a significantly higher amount of political

power than the average citizen. As theorized by Jeffrey Winters and Benjamin Page, “campaign

contributions constitute a plausible mechanism by which oligarchs could influence public policy

despite formally democratic institutions.”22 A study conducted by the American Political

20 M. Gilens & B. I. Page,

“Testing Theories ofAmerican Politics: Elites, Interest Groups, andAverage Citizens, ” Perspectives on Politics 12, no. 3 (2014): 572. 21 Corporations have been recognized by the Court as “persons” under the Equal Protection Clause. The Court, however, has been hesitant to designate corporations as “citizens” for other protections, such as the Privileges and Immunities Clause. (Torres-Spelliscy 2021). This designation has opened the doors for corporations to be treated as individual citizens, as shown through Citizens United. 22 J.A. Winters & B. I. Page, “Oligarchy in the United States?” Perspectives on Politics 7, no. 4 (2009): 742.

Sciences Association (“APSA”) Task Force on Inequality and American Democracy found that

“Americans with more income or wealth generally exert more political influence than those with

less.”23 In the article published by the APSA task force, which conducted its study by reviewing

scholarship on the health and functioning of U.S. democracy, the members concluded that

“progress toward realizing American ideals of democracy may have stalled, and in some arenas

reversed.”24

As stated by the ASPA task force, “citizens with lower or moderate incomes speak with a

whisper that is lost on the ears of inattentive government officials, while the advantaged roar

with a clarity and consistency that policy-makers readily hear and routinely follow.”25 The

legitimacy of the American representative democracy has been holding on by a thread for some

time, and recent Supreme Court decisions have only strained it further. To understand how

damaging the Citizens United decision is on long-standing principles of democracy, the

regulations and decisions leading up to Citizens United must be explored as well.

III. Legal Framework Regarding Regulation of Election Funding and Corporate Speech

This section provides a chronological breakdown of the legal framework regulating or

affecting election funding and corporate political speech. Federal campaign finance law covers

multiple subjects and has been an issue in the United States since at least 1757.26 The need for

regulation stems from the goal of preventing corruption, namely in the form of bribery, from

affecting federal elections. Throughout American history, several large, encompassing acts have

23 J.A. Winters & B. I. Page,

“Oligarchy in the United States?” Perspectives on Politics 7, no. 4 (2009): 738. 24 “American Democracy in anAge of Rising Inequality” (2004), 2. 25 “American Democracy in anAge of Rising Inequality” (2004), 2. 26 “George Washington to Citizens United:AHistory of Campaign Finance Reform, ” Common Cause, May 21, 2019.

been passed by Congress while equally important rulings have been made by the United States’

Supreme Court.

Prior to beginning the breakdown of legal decisions regarding campaign finance reform,

it is logical to provide a brief explanation of the First, Fourteenth, and Fifteenth Amendments to

the United States’ Constitution. In application to campaign funding, the First Amendment

provides protections to freedom of speech that are exercised both explicitly and nonverbally. The

amendment affords protection for the forms of speech explicitly listed, such as religion and

assembly, but also in nonverbal self-expression such as wearing symbolic arm bands or

displaying flags. The First Amendment also provides protection for the freedom of association

and belief. For the purposes of this thesis, the Fourteenth Amendment should be understood to

incorporate the Due Process and Equal Protection Clauses and guarantee fairness to all

individuals. The Fifteenth Amendment guarantees all citizens the right to vote with no

abridgement by the United States on the basis of race, color, or previous condition of servitude. I

now explain how the regulation of electoral campaigns began in the United States, and what it

has become in modern times.

The earliest known decision in American campaign influence occurred in 1757 after

George Washington purchased hard cider and punch for friends in an attempt to secure a seat in

Virginia’s House of Burgesses.27 The House of Burgesses subsequently passed a law that

“prohibited candidates, or persons on their behalf, from giving voters money, meat, drink,

entertainment or provision … any present, gift, reward or entertainment, etc. in order to be

elected.”28 The first time that regulation of campaign finances was applied to the federal

27 “George Washington to Citizens United:AHistory of Campaign Finance Reform, ” Common Cause, May 21, 2019.

28 “George Washington to Citizens United:AHistory of Campaign Finance Reform, ” Common Cause, May 21, 2019.

government, however, occurred in 1867 when Congress enacted a bill making it illegal for

government officials to solicit naval yard workers for money. 29 The year 1883 gave way to the

Pendleton Civil Service Reform Act prohibiting government officials from soliciting

contributions from any civil service workers or awarding non-merit based civil service

positions.30 These laws of the 18th and 19th centuries provide evidence that even prior to the

inception, and throughout the development of the United States, money in politics was perceived

to enable corruption, and regulation was required to protect representative democracy long

before the cost of modern elections was an issue.

Enacted in 1868, the Fourteenth Amendment to the United States Constitution hosts the

Equal Protection Clause. Section Two of this amendment provides that “when the right to vote at

any election… is denied… or in any way abridged... the basis of representation therein shall be

reduced in the proportion [of the population denied].”31 The provisions of the Fourteenth

Amendment were first created to put an end to racial segregation in the states, and has since

become one of the most-litigated amendments. Based on the amendment’s goals of creating a

more inclusive governmental system, the Equal Protection Clause can be interpreted to provide

protections against exclusionary campaign practices in the United States.32 I will explore this

notion further within my Literature Review.

In 1905, President Theodore Roosevelt saw the need to eradicate political corruption, and

called for remedial measures. One result was the Tillman Act, passed in 1907. This act, 34 Stat.

864 (1907), was created in response to unprecedented amounts of campaign funds being raised

29 “George Washington to Citizens United:AHistory of Campaign Finance Reform, ” Common Cause, May 21, 2019.

30 “George Washington to Citizens United:AHistory of Campaign Finance Reform, ” Common Cause, May 21, 2019.

31 U.S. Constitution,Amendment XIV, § 2. 32 The Equal Protection Clause applies to designated protected classes. Examples of these classes are race, religion, national origin, and age.

by political candidates and parties during the end of the 19th century and in the 1904 election

cycle. Candidates raising large sums of money through donations and from corporations created

a perception of a corrupt government. The perception held true in many governmental systems

where politicians can be bought should an individual have the means.33 The Tillman Act marked

the first effort of the federal government to regulate campaign finance in the United States,

banning corporations from expending money from their treasuries to influence a federal

election.3435

The Act was difficult to enforce and did not stand much ground against corporations

seeking to contribute to federal campaigns. Despite including language regarding contributions

and expenditures, the Act failed to provide ways in which these campaign contributions could be

limited or regulated in practice. The Tillman Act defined “contribution or expenditure” as

including “anything of value,” because in addition to capital, corporations “donated office space,

typewriters, and free travel to members of Congress.”36 The provisions of the act sought to close

an existing loophole that allowed hopeful political contributors to circumvent campaign finance

regulations against cash donations by instead donating office supplies and other things not

considered to be “of value.” This Act, although not successful itself, paved the way for future

campaign finance regulations to be enacted.

The year 1965 brought the Voting Rights Act, passed on the authority provided to

Congress by Section 2 of the Fifteenth Amendment, to enforce “by appropriate legislation” the

banning of racial discrimination in voting. The act also requires states and local governments to

33 “George Washington to Citizens United:AHistory of Campaign Finance Reform, ” Common Cause, May 21, 2019.

34 ThisAct did not prevent massive corruption by the Railroad or other industries on state governments, particularly in the western states (Cuellar & Stephenson, 2020). 35 J.M. Bitzer, TillmanAct of 1907, 2009. 36 J.M. Bitzer, TillmanAct of 1907, 2009.

gain the approval of the District of Columbia or the United States’Attorney General before they

are allowed to enact any changes to their voting and election laws. The Voting Rights Act has

been subject to numerous lawsuits due to its provisions, most consequently in 2013 as discussed

below, and has been amended or extended multiple times. The Fifteenth Amendment, on which

the Voting Rights Act was based, provides powerful protections against vote dilution of

American citizens based on race or color. These protections were effectively replaced by the

Voting Rights Act through the introduction of a discriminatory effects test subsequently forcing

modern voting rights to rely on the Equal Protection Clause and its narrower protections.37

The Federal Election Campaign Act (FECA), enacted in 1971 and amended in 1974,

1976, and 1979, was created to offer protection against corruption occurring in federal elections.

The act had many provisions including limitations on political contributions by individuals and

groups, limitations on independent spending by individuals and groups “relative to a clearly

identified candidate,” and limitations on personal contributions by the candidate and relatives of

the candidate.38 This act established committees and commissions to ensure the keeping of

campaign contribution records and the enforcement of provisions guaranteed by the act. By

placing caps on contributions to political campaigns, the federal government tried to control the

disproportionate influences of the wealthy minority on federal elections.

The newly enacted provisions of the 1974 amendments to the Federal Election Campaign

Act (FECA) had a short tenure before being challenged in the Supreme Court of the United

States. In Buckley v. Valeo (1976), the group of appellants composed of federal candidates and

officeholders challenged the provisions of the FECA on Constitutional grounds, arguing that the

limitations placed on contributions were in violation of their Constitutional rights. The appellants

37 S.N. Kang, “Restoring the FifteenthAmendment: The Constitutional right to an Undiluted Vote, ” December 18,

2019.

38 Federal Election Campaign Act of 1971, Public Law 107-155 (2002).

argued that the provisions of the FECA were in violation of Article II, Section 2, Clause 2 of the

Constitution, and of their First and Fifth Amendment rights. Appellants alleged that “limiting the

use of money for political purposes constitutes a restriction on communication violative of the

First Amendment…”39

The Court held that the Act’s “contribution provisions are [C]onstitutional, but the

expenditure provisions violate the First Amendment.”40 The Buckley Court further held that the

provisions of the FECA restricting campaign contributions “are appropriate legislative weapons

against the reality or appearance of improper influence stemming from the dependence of

candidates on large campaign contributions.”41 In the Court’s view, the act serves to “restrict the

voices of people and interest groups who have money to spend” while “equalizing the relative

ability of all voters to affect electoral outcomes.”42Buckley marked the beginning of a new era of

campaign funding lawsuits and Supreme Court decisions.

Shortly after the Buckley decision, the Supreme Court heard First National Bank of

Boston v. Bellotti (1978). This action challenged a Massachusetts criminal statute prohibiting

national banking associations and business corporations from making political contributions.43

The statute prohibited contributions or expenditures “for the purpose of … influencing or

affecting the vote on any question submitted to the voters, other than one materially affecting any

of the property, business or assets of the corporation.”44 The Court held that the Massachusetts

statute violated the First Amendment, opening grounds to arguments protecting the free speech

of corporations. The Court opined that “[t]here is no support in the First or Fourteenth

39 Buckley v. Valeo, 424 U.S. 1 (1976), 11. 40 Buckley v. Valeo, 424 U.S. 1 (1976), 12-59. 41 Buckley v. Valeo, 424 U.S. 1 (1976), 22-38. 42 Buckley v. Valeo, 424 U.S. 1 (1976), 18. 43 First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978), 765. 44 First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978), 765.

Amendment, or in this Court’s decisions, for the proposition that such speech loses the protection

otherwise afforded it by the First Amendment simply because its source is a corporation.”45

The Bellotti Court further held that the statute could not survive the strict scrutiny

required by the First Amendment, stating that “[t]his statute cannot be justified by the State’s

asserted interest in sustaining the active role of the individual citizen in the electoral process and

preventing diminution of his confidence in government.”46 This decision was further supported

by the Court, asserting that corporate voices directly involved with campaigns and elections do

not diminish the trust of citizens in the government or invoke any danger to the electoral process.

The Bellotti Court’s reliance on the First Amendment’s commercial speech doctrine, which

protects speech that concerns lawful activity and is not misleading, began paving a road on

which corporations could utilize the protections of the First Amendment to ensure their ability to

influence elections.47 This notion of commercial speech was introduced in Virginia State Board

of Pharmacy v. Virginia Citizens Consumer Council (1976). Citing Buckley, the Court held that

“speech does not lose its First Amendment protection because money is spent to protect it, as in a

paid advertisement of one form or another.”48 The Court granted Constitutional protection for

speech that is sold, purchased, or involves soliciting funding.

Continuing to attack the Federal Election Campaign Act, in Federal Election Commission

v. Massachusetts Citizens for Life, Inc. (1986), the appellants argued against Section 316 of the

FECA which prohibited corporations from using their treasury funds to make an expenditure “in

connection with” any federal election49 While the Court upheld some challenges to the FECA, it

45 First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978), 766. 46 First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978), 788. 47 Commercial speech is speech that involves advertising of goods or services and speech that aim at influencing public policy (O’Brien, 2014, p. 613). 48 Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S. 748 (1976), 762. 49 Federal Election Commission v. Massachusetts Citizens for Life, Inc., 479 U.S. 238 (1986), 238.

found that Section 316 violated the Constitution for “infring[ing] protected speech without a

compelling justification for such infringement.”50 Until this point, many courts were opining

against the provisions of the FECA and granting First Amendment protections to corporations

looking to conduct political speech.

In 1990, the Supreme Court decided Austin v. Michigan Chamber of Commerce. Section

54(1) of the Michigan Campaign Finance Act prohibited corporations from using their treasury

funds for making independent expenditures for state candidate elections. The Austin Court

upheld Section 54(1), stating that it did not, in fact, violate the Constitution.51 Rejecting the

burdens held in FEC v. Massachusetts Citizens for Life, the Court held that “Section 54(1) is

justified by a compelling state interest: preventing corruption or the appearance of corruption in

the political arena by reducing the threat that huge corporate treasuries... will be used to

influence unfairly election outcomes.”52 Further, the Austin Court held that provisions such as

those in Section 54(1) do not violate the Equal Protection Clause as the “State’s decision to

regulate corporations and not unincorporated associations is precisely tailored to serve its

compelling interest.”53 Austin is credited with reaffirming an anti-distortion interest that fulfilled

a compelling governmental interest in regulating the political speech of corporations. This

anti-distortion rationale provided protection against “the corrosive and distorting effects of

immense aggregations of wealth that are accumulated with the help of the corporate form and

that have little or no correlation to the public’s support for the corporation’s political ideas.”54

This provision was controversial because, although allowing the suppression of speech in the

50 Federal Election Commission v. Massachusetts Citizens for Life, Inc., 479 U.S. 238 (1986), 240. 51 “American Democracy in anAge of Rising Inequality. ” (2004), 657-666. 52 “American Democracy in anAge of Rising Inequality. ” (2004), 657-660. 53 “American Democracy in anAge of Rising Inequality. ” (2004), 654. 54 “American Democracy in anAge of Rising Inequality. ” (2004), 657-660.

name of preventing corruption in the United States, it was seen as necessary to protect the

integrity of the U.S. electoral process.

In 1991, McCormick v. United States drew distinctions between bribery and campaign

contributions. The McCormick Court effectively created barriers to prosecutors attempting to

convict politicians of extortion in holding that a quid pro quo is necessary when an official

receives a campaign contribution, regardless of whether it is a legitimate contribution.55 The

furtherance of corruption definitions within the Supreme Court, I argue, showed the Court’s to

have a compelling interest in preventing corruption in United States elections.

Nixon v. Shrink Missouri Government PAC (2000) was of great importance for defining

corruption within elections in the United States. The Nixon Court opined heavily on political

corruption in American politics, stating that “corruption is a subversion of the political process.

Elected officials are influenced to act contrary to their obligations of office by the prospect of

financial gain to themselves or infusions of money into their campaigns.”56 The Nixon Court

addressed corruption from political fundraising and expressed that the threat of corruption

“extend[ed] to the broader threat from politicians too compliant with the wishes of large

contributors.”57

The Bipartisan Campaign Reform Act (BCRA) of 2002, also known as the

McCain-Feingold Act, was introduced to regulate campaign funding for federal political

candidates and campaigns. This act specifically targeted money donated outside of federal

regulation and the use of treasury funds in funding campaigns, commonly known as “soft

money.” The BCRA introduced bans on corporations and unions from using their treasury funds

to influence and produce electioneering communications referring to a specific candidate within

55 McCormick v. United States, 500 U.S. 257 (1991), 268. 56 Nixon v. Shrink Missouri Government PAC, 528 U.S. 377 (2000), 388. 57 Nixon v. Shrink Missouri Government PAC, 528 U.S. 377 (2000), 389.

thirty days of federal primary elections.58 This act specifically targeted “attack ads” that were

produced in opposition to competing candidates in advance of elections.

The BCRA led to a historically greater number of challenges in the courts. In 2003 the

Supreme Court decided McConnell v. FEC, upholding some provisions of the BCRA while

reversing others. In brief, the rulings in McConnell upheld the BCRA’s restrictions on using soft

money and creating issue ads, the requirements for public broadcasters to keep public records

regarding politically related broadcast requests, and the “millionaire’s amendment.”59 This

provision of the BCRA, located in Section 319(b) and adding FECA Section 315(A), allows for

increases on contribution limits for candidates in the event their opponent contributes large

amounts of personal funding to their campaign. Justice Rehnquist wrote to uphold the District

Court dismissal of the challenge against the “millionaire provisions,” stating that the appellants

“fail to allege a cognizable injury that is ‘fairly traceable’ to the BCRA.”60 The McConnell Court

reversed the BCRA’s ban on political contributions made by individuals younger than eighteen

years of age on the grounds that minors are afforded First Amendment rights and the limitations

on minors’ political contributions “impinge on the protected freedoms of expression and

association.”61

One of the next major decisions on the regulation of campaign funding occurred in

Randall v. Sorrell (2006), arising from a Vermont Act that placed limitations on the amount

candidates were permitted to contribute to their own campaigns and the amount they could

receive through public funding. Citing Buckley, the Court held that each of the provisions of

Vermont Act 64 violated the free speech guarantees of the First Amendment.62 The Court

58 D. M. O’Brien, Constitutional Law and Politics, 1, W.W. Norton & Company, 2014, 929. 59 McConnell v. Federal Election Commission, 540 U.S. 93 (2003), 93. 60 McConnell v. Federal Election Commission, 540 U.S. 93 (2003), 93. 61 McConnell v. Federal Election Commission, 540 U.S. 93 (2003), 93. 62 Randall v. Sorrell, 548 U.S. 230 (2006), 230.

explained that under Buckley, “expenditure limits impose significantly more severe restrictions

on protected freedoms of political expression and association than do contribution limits.”63

Citing both Buckley and McConnell, the Court decided that although limitations had been

previously upheld, “contribution limits that are too low also can harm the electoral process by

preventing challengers from mounting effective campaigns against incumbent officeholders,

thereby reducing democratic accountability.”64

Justice Souter, joined by Justice Ginsburg and Justice Stevens, dissented in the Randall

decision. The dissent cites Nixon v. Shrink Missouri Government PAC, which states that

contribution limits should be considered too low when “in effect as to render political association

ineffective [and] drive the sound of a candidate’s voice below the level of notice and render

contributions pointless.”65 The dissent argued that holding the Vermont Act’s limitations as

unconstitutional “is to forget not only the facts of Shrink, but also our self-admonition against

second-guessing legislative judgments about the risk of corruption to which contribution limits

have to be fitted.”66 This powerful dissent proceeds to cite research that displays recorded

testimony of Vermont state legislators and candidates stating that they give preference and access

to contributors that make large financial contributions; money gets these legislators’ and

candidates’ special attention.67 Through recognizing these issues, the dissenting Justices call to

attention the potential for corruption being reached through political contributions.

In 2007, Federal Election Commission v. Wisconsin Right to Life, Inc. once again

challenged provisions of the BCRA that placed limitations on electioneering communications.

This case attacked Section 203 of the BCRA which prohibited corporate and labor disbursements

63 Randall v. Sorrell, 548 U.S. 230 (2006), 230. 64 Randall v. Sorrell, 548 U.S. 230 (2006), 230. 65 Nixon v. Shrink Missouri Government PAC, 528 U.S. 377 (2000), 230. 66 Nixon v. Shrink Missouri Government PAC, 528 U.S. 377 (2000), 230. 67 Nixon v. Shrink Missouri Government PAC, 528 U.S. 377 (2000), 230.

for electioneering communications.68 The Court held Section 203 unconstitutional as applied to

the advertisements, stating that “the speech at issue is not the ‘functional equivalent’ of express

campaign speech.”69 The Court ruled that Section 203 is subject to strict scrutiny under

McConnell on the grounds that it burdens political speech and that the government has the

burden of proof of establishing that applying the BCRA “furthers a compelling governmental

interest and is narrowly tailored to achieve that interest.”70 The Court held that WRTL’s ads could

be “reasonably interpreted as something other than an appeal to vote for or against a specific

candidate,” and that “a court should find that an ad is the functional equivalent of express

advocacy only if the ad is susceptible of no reasonable interpretation other than as an appeal to

vote for or against a specific candidate.”71

Although the WRTL Court declined to overturn McConnell, Justices Souter, Stevens,

Ginsburg, and Breyer sharply disagreed in their dissent with the majority opinion and stated,

“McConnell was our latest decision vindicating clear and reasonable boundaries that Congress

has drawn to limit ‘the corrosive and distorting effects of immense aggregations of wealth.’”72

The dissenting Justices further argued that, following the WRTL decision, “the ban on

contributions by corporations and unions and the limitation on their corrosive spending when

they enter the political arena are open to easy circumvention, and the possibilities for regulating

corporate and union campaign money are unclear.”73 This dissent concludes with the powerful

statement that:

The understanding of the voters and the Congress that this kind of corporate and union spending seriously jeopardizes the integrity of democratic government will remain. The facts are too powerful to be ignored, and further efforts at campaign finance reform will

68 Federal Election Campaign Act of 1971, Public Law 107-155 (2002). 69 Federal Election Commission v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007), 449. 70 Federal Election Commission v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007). 71 Federal Election Commission v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007). 72 Federal Election Commission v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007), 449. 73 Federal Election Commission v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007), 449.

come. It is only the legal landscape that now is altered, and it may be that today’s departure from precedent will drive further reexamination of the constitutional analysis: of the distinction between contributions and expenditures, or the relation between spending and speech, which have given structure to our thinking since Buckley itself was decided. 74

Davis v. Federal Election Commission (2008) followed next and once again attacked

Section 319 of the BCRA, the so-called “millionaires’ amendment.” The Davis Court held that

Section 319 was unconstitutional as it violates the First Amendment. The Court held that the

provisions of Section 319 that imposed an “asymmetrical regulatory scheme” on political

candidates who were privately funding their campaigns “[impose] an unprecedented penalty on

any candidate[s] who robustly [exercise] that First Amendment right [to advocate his own

election], requiring [them] to choose between the right to engage in unfettered political speech

and subjection to discriminatory fundraising limitations.”75 The reversal of Section 319 was

further defended on the notion that “the burden is not justified by any governmental interest in

eliminating corruption or the perception of corruption… nor can an interest in leveling electoral

opportunities for candidates of different personal wealth justify Section 319’s asymmetrical

limits.”76

Each of these cases heard by the Supreme Court contributed to the protection of United

States citizens from corruption within elections. Through regulating campaign finance, while

also focusing on the importance of free speech protections, the Court acknowledged issues

within the United States’ electoral system. Nevertheless, 2010 brought a shocking display of

support for corporately backed campaigns, as the Court heard and decided Citizens United.

Citizens United v. FEC

74 Federal Election Commission v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007), 449. 75 Davis v. Federal Election Commission, 554 U.S. 724 (2008), 10-17. 76 Davis v. Federal Election Commission, 554 U.S. 724 (2008), 10-17.

As the precedent regarding cases on campaign financing was eroded, the way was paved

for Citizens United to upheave standards set by earlier Courts to protect individual Americans’

political power from being drowned by wealthy elites. This case, decided by the Court in 2010,

involved Citizens United, a conservative nonprofit organization that gathered a small portion of

its funds from for-profit corporations. Citizens United argued that its rights were being violated

by campaign finance regulations limiting independent expenditures and political contributions.

Citizens United makes and markets far-right propaganda films. After creating a film that was

critical (to put it politely) of presidential candidate Hilary Clinton, the nonprofit sought relief and

argued that the provisions of the BCRA were unconstitutional when applied to their film, as they

wanted to make Hillary available through video-on-demand within 30 days of the 2008 primary

elections. This case required the Court to “consider the continuing effect of the speech

suppression upheld in Austin” while deciding the protections that should be afforded to corporate

political speech.77

Citizens United targeted Section 441b of the BCRA, which governed the use of a

corporation or union’s treasury funds to partake in speech that is an “electioneering

communication” or expressly advocates for the election or defeat of a candidate. The Court

wrote, “these onerous restrictions thus function as the equivalent of a prior restraint, giving the

FEC power analogous to the type of government practices that the First Amendment was drawn

to prohibit.”78 By taking such a stand, the Citizens United Court opened the floodgates of legal

corporate political financing.

The Court held that Austin would be overruled and would no longer provide a basis for

the government to limit future corporate independent expenditures. In deciding this, the Court

77 Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), 12. 78 Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), 18.

also overturned part of the holding in McConnell, which had previously upheld the BCRA’s

restrictions on these corporate expenditures. Following the decision to overturn these precedents,

the Court wrote that “speech is an essential mechanism of democracy--it is the means to hold

officials accountable to the people” and that “laws burdening such speech are subject to strict

scrutiny, which requires the Government to prove that the restriction ‘furthers a compelling

interest and is narrowly tailored to achieve that interest.’”79

Citing Austin, the Court recognized the governmental interest in “preventing the

corrosive and distorting effects of immense aggregations of corporate wealth... that have little or

no correlation to the public’s support for the corporation’s political ideas”80 but nonetheless

decided that “First Amendment protections do not depend on the speaker’s ‘financial ability to

engage in public discussion.’”.81 The Court also overturned Austin on grounds that its

“antidistortion rationale would permit the Government to ban political speech because the

speaker is an association with a corporate form.”82 The Court further held that “distinguishing

wealthy individuals from corporations based on the latter’s special advantages of, e.g., limited

liability, tax benefits, and perpetual existence, does not suffice to allow laws prohibiting

speech.”83 The Citizens majority opined:

Independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption. That speakers may have influence over or access to elected officials does not mean that those officials are corrupt. And the appearance of influence of access will not cause the electorate to lose faith in this democracy. 84

Citing Buckley, the Court found that the governmental interest to prevent corruption was

insufficient to justify the restrictions on free speech alleged by the appellant. The majority

79 Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), 23. 80 Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), 31. 81 Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), 31, 34. 82 Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), 33. 83 Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), 35. 84 Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), 42.

opinion claimed that the limitations of independent corporate expenditures have “a chilling effect

extending well beyond the Government’s interest in preventing quid pro quo corruption.”85 In

overturning Austin, the Court held that limits on independent corporate expenditures were

unconstitutional.

Dissenting in part and concurring in part, Justice Stevens, joined by Justice Ginsburg,

Justice Breyer, and Justice Sotomayor, wrote, “neither Citizens United’s nor any other

corporation’s speech has been banned… the parties dispute whether Citizens United had a right

to use the funds in its general treasury to pay for broadcasts during the 30-day period.”86 This

powerful dissent brings to attention that the First Amendment does not

tell us when a corporation may engage in electioneering that some of its shareholders oppose. It does not even resolve the specific question whether Citizens United may be required to finance some of its messages with the money in its PAC. The conceit that corporations must be treated identically to natural persons in the political sphere is not only inaccurate but also inadequate to justify the Court’s disposition of this case. 87

This dissent states that the Court’s holding in Citizens United threatens to undermine the integrity

of elected institutions across the Nation.88

The fundamental issue regarding designating corporations the same status as individual

citizens is also addressed in this dissent:

In the context of election to public office, the distinction between corporate and human speakers is significant. Although they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office. Because they may be managed and controlled by nonresidents, their interests may conflict in fundamental respects with the interests of eligible voters. The financial resources, legal structure, and instrumental orientation of corporations raise legitimate concerns about their role in the electoral process. Our lawmakers have a compelling [C]onstitutional basis, if not also a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races. 89

85 Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), 41. 86 Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), 1. 87 Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), 2. 88 Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), 4. 89 Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), 2.

As pointed out by the Dissent, the Court’s designation of corporations as equals to individual

citizens enters dangerous territory for United States’ democracy and threatens further growth of

corporate power within the country. In allowing and protecting this corporate free speech within

U.S. elections, the Court chose to forego protecting its individual citizens from having their

opinions and preferences overshadowed within electoral races and instead chose to protect

corporations.

Five decades before Citizens United, vote dilution was an issue that the Court decided

upon through the Voting Rights Cases. The drowning of individual citizens’ voices through

corporate campaign financing shares similarities with these cases, which I will now explore.

Voting Cases of the 1960’s

To fully comprehend my arguments regarding Citizens United, understanding the

landmark Voting Cases of the 1960s is necessary. In response to pervasive racial discrimination

within the United States’ electoral system, the Supreme Court heard cases regarding redrawing

electoral districts based on racial populations. In addressing these issues, the Court examined the

rejection of vote dilution and unequal concentrations of power that are found within the United

States Constitution.

In 1963, the Court heard Gray v. Sanders, in which the appellant sued to prohibit the

Secretary of State and the State Democratic Executive Committee of Georgia from tallying votes

by county instead of counting each vote. Due to this practice, citizens in rural districts with

predominantly white citizens had votes that were 99 times as powerful as those within urban

districts composed of predominantly Black citizens.90 The Court held that this concentration of

power violated the Constitution’s provisions of equality and established the first notion of the

90 Gray v. Sanders, 372 U.S. 368 (1963), 368-370.

one-person, one-vote principle.91 In Wesberry v. Sanders (1964), the Court again held that

Georgia’s districting scheme was unconstitutional, stating, “To say that a vote is worth more in

one district than another would… run counter to our fundamental ideas of democratic

government.”92

In 1964, the Court also heard Reynolds v. Sims. 93 In this action, voters in Alabama fought

against the reapportionment of districts based on size, citing that doing so violated the Equal

Protection Clause. The Court held that the Equal Protection Clause required legislative districts

in states to be comprised of roughly equal populations and that the Clause “guarantees the

opportunity for equal protection by all voters.”94 The Court further held:

Some deviations from a strict equal population principle are [C]onstitutionally permissible … so long as the basic standard of equality of population among districts is not significantly departed from… considerations of... economic or other group interests… do not justify deviations from the equal population principle. 95

Through these decisions, the Court established the right to an undiluted vote for all citizens in the

United States. The dilution of votes based on racial or financial inequality is representative of

social class bias and, I argue, should be proscribed by the Court and the Equal Protection Clause

when there is evidence of unequal power in votes due to differences in classes.

In addressing vote dilution based on racial inequality, the Court firmly held that political

power within the United States should not be in the hands of the few as established by the Equal

Protection Clause, which requires “substantially equal legislative representation for all citizens in

a State regardless of where they reside.”96 Not only did the Court rely upon the Fourteenth

Amendment in deciding these cases, but it also examined the Fifteenth and Nineteenth

91 Gray v. Sanders, 372 U.S. 368 (1963), 370-380. 92 Wesberry v. Sanders, 376 U.S. 1 (1964), 8-9. 93 Reynolds v. Sims, 377 U.S. 533 (1964), 533. 94 Reynolds v. Sims, 377 U.S. 533 (1964), 566. 95 Reynolds v. Sims, 377 U.S. 533 (1964), 579-580. 96 Reynolds v. Sims, 377 U.S. 533 (1964), 561-568.

Amendments, the Constitution as a whole, and the concepts of equal participation and popular

sovereignty. The Court held strongly to the need for equality within U.S. democratic elections

during the Voting Cases, and I argue, should return to applying the same protections in modern

times.

In 1973, the Court heard San Antonio Independent School District v. Rodriguez. The

hearing of this case followed alleged discrimination based on the funding of publicschool

districts. In the opinion, the Court stated, “The Court has long afforded zealous protection against

unjustifiable governmental interference with the individual’s rights to speak and to vote. Yet we

have never presumed to possess either the ability or the authority to guarantee to the citizenry the

most effective speech or the most informed electoral choice.”97 This Court held that, in terms of

equality within the quality of education provided to students, financial inequality was nota

protected class as it “‘fails to define the kind of objectively identifiable classes’…perceived to be

necessary for a claim to be ‘cognizable under the Equal Protection Clause.’”98 The Rodriguez

Court further discussed Equal Protection regarding voting and stated:

This disparity in voting power based on wealth cannot be described by reference to discrete and precisely defined segments of the community as is typical of inequities challenged under the Equal Protection Clause … precise membership of the disadvantaged class was not [clear]. 99

I argue that if precise membership of a disadvantaged class needs to be clear to apply the Equal

Protection Clause for voting rights, the Court should revisit the holding in Rodriguez under the

light of modern times following Citizens and consider designating financial inequality as a

protected class.

Shelby County v. Holder

97 SanAntonio Independent School District v. Rodriguez, 411 U.S. 1 (1973), 36. 98 SanAntonio Independent School District v. Rodriguez, 411 U.S. 1 (1973), 93. 99 SanAntonio Independent School District v. Rodriguez, 411 U.S. 1 (1973), 94.

Following Citizens United, the Supreme Court heard Shelby County v. Holder in 2013.

Shelby County challenged the provisions of Section 4 of the Voting Rights Act (VRA), claiming

that the “coverage formula” of the VRA that protected against vote dilution was unconstitutional.

This formula, which applied to only nine states with histories of voter discrimination, determined

whether jurisdictions had to preclear with Congress any changes to voting rules to prevent voter

discrimination throughout the United States. The Court held that Section 4 was unconstitutional,

stating, “The Voting Rights Act… requires States to beseech the Federal Government for

permission to implement laws that they would otherwise have the right to enact and execute on

their own.”100 While this case was decided on the grounds of state sovereignty, the repeal of

Section 4 of the VRA showed a divergence from protection by the federal government against

vote suppression.

The Shelby Court opined that while the provisions of Section 4 were appropriate at their

inception, they were no longer necessary to protect voters in the modern United States. The

opinion presents the rather unbelievable notion that voter discrimination is effectively cured in

the U.S. It further claims (again, unbelievably) that “the Nation is no longer divided among those

[racial] lines, yet the Voting Rights Act (VRA) continues to treat it as if it were.”101 Not only do I

wholeheartedly disagree that the United States has been cured of racial discrimination, as evident

by a plethora of racial justice moments active in recent years, but I also wish to call attention to

the ways in which vote protection has been disintegrated further by the Court following the

Citizens United decision. Following Shelby, Texas and Alabama, two of the states affected by

Section 4 of the VRA, immediately implemented restrictions on voters including identification

requirements, restrictions on registering to vote, and redrawing voting districts.102 Within hours

100 Shelby County v. Holder, 570 U.S. 529, (2013), 9-12. 101 Shelby County v. Holder, 570 U.S. 529, (2013), 17-18. 102 “The Effects of Shelby County v. Holder, ” Brennan Center for Justice.August 6, 2018.

of the Shelby decision, the Attorney General of Texas stated, “Redistricting maps passed by the

Legislature may also take effect without approval from the federal government.”103 Repeated

decisions by the Supreme Court to loosen protections from vote dilution and vote suppression are

a threat to the United States democracy, and it is disheartening how this trend has continued

following Citizens United as part of a larger national trend away from racial equality.

IV. Review of the Literature

In this section, I will explore previous research regarding the effects of Citizens United on

representative democracy. Through my research, I have compiled empirical, statistical, and

theoretical information to support and dispute my arguments. I seek to utilize this data to form

conclusions regarding Citizens United and participatory equality in the representative democracy

of the United States. .

Klumpp, Mialon, and Williams explored whether Citizens United had “tilted the playing

field so strongly in favor of wealthy players that elections can now be bought routinely with

sufficient money.”104 They hypothesized that “if business interests outspend labor interests and

spend more on Republican candidates than on Democratic candidates… removing restrictions on

independent spending increases the probability that Republican candidates win elections at the

expense of Democratic candidates.”105 The authors reviewed state statutory, Constitutional law,

and previous campaign finance records to examine the effects of lifting restrictions on campaign

funding. The authors found that Citizens United s was a possible source leading to a decrease of

candidates per campaign race and an increase of electoral victories for Republican candidates.106

103 “The Effects of Shelby County v. Holder, ” Brennan Center for Justice.August 6, 2018. 104 T. Klumpp, H.M. Mialon, & M.A. Williams, “The Business ofAmerican Democracy: Citizens United, Independent Spending, and Elections, ” Journal of Law and Economics 59 (2016): 2. 105 T. Klumpp, H.M. Mialon, & M.A. Williams, “The Business ofAmerican Democracy: Citizens United, Independent Spending, and Elections, ” Journal of Law and Economics 59 (2016): 2. 106 T. Klumpp, H.M. Mialon, & M.A. Williams, “The Business ofAmerican Democracy: Citizens United, Independent Spending, and Elections, ” Journal of Law and Economics 59 (2016).

They noted the difference between the typical campaign spending habits of corporations versus

labor unions, stating that historically corporations tended to support Republican candidates,

while their labor union counterparts historically supported Democratic candidates.107

The article also suggested that the Citizens United decision increased political spending

in states where corporate and union expenditures were previously legal due to offering an

assurance of legality to donors.108 They found that “a plausible effect of Citizens United is that it

discourages some donors from contributing to election campaigns in an environment that allows

wealthy individuals and organizations to spend without limits.”109 Their economic study found

that “by removing restrictions on corporate and union independent expenditures, Citizens United

increased Republicans’ election probabilities in state house elections.”110 Finally, the study

suggested that Citizens United not only increased the chances of Republican candidates being

elected but also decreased the number of Democratic candidates running in elections at all.111

Mark Alexander noted that “in the world of modern political campaigns, as candidates

compete for money from the few, the many are left out, in conflict with the [C]onstitutional

promise of equality.”112 Alexander addressed the issue of time consumption associated with

modern political campaigns, noting that “protecting the time of candidates… from the grind of

fundraising is a compelling interest that needs to be recognized in order to enable our elected

107 T. Klumpp, H.M. Mialon, & M.A. Williams,

“The Business ofAmerican Democracy: Citizens United, Independent Spending, and Elections, ” Journal of Law and Economics 59 (2016). 108 T. Klumpp, H.M. Mialon, & M.A. Williams, “The Business ofAmerican Democracy: Citizens United, Independent Spending, and Elections, ” Journal of Law and Economics 59 (2016). 109 T. Klumpp, H.M. Mialon, & M.A. Williams, “The Business ofAmerican Democracy: Citizens United, Independent Spending, and Elections, ” Journal of Law and Economics 59 (2016): 14. 110 T. Klumpp, H.M. Mialon, & M.A. Williams, “The Business ofAmerican Democracy: Citizens United, Independent Spending, and Elections, ” Journal of Law and Economics 59 (2016): 36. 111 T. Klumpp, H.M. Mialon, & M.A. Williams, “The Business ofAmerican Democracy: Citizens United, Independent Spending, and Elections, ” Journal of Law and Economics 59 (2016). 112 M. C.Alexander, “Citizens United and Equality Forgotten, ” New York University Review of Law & Social Change 35, no. 3 (2011): 500.

officials to act as representatives of the people.”113 While Alexander acknowledged the utmost

importance of preserving First Amendment protections of speech, he rebutted the Citizens United

decision and stated, “some voices are louder than others… it is not the quality of what a person

says but her socioeconomic status that determines whether her voice will be heard.”114 This

concept of financial status allowing the wealthy elite minority to speak louder than middle- or

low-class citizens is further supported by Alexander discussing how the Citizens United Court

“notably disregarded the way that large sums of money can effectively drown out smaller voices

and prevent the people from participating effectively in politics and government.”115

Pearlstein described the escalation in election spending not only as a result of the court

rulings but also an “upward shift in the distribution of income.”116 Pearlstein further theorized

that wealthy political donors have effectively purchased “a government that leaves them with

more disposable income by lowering their effective tax rates, individually and through the

businesses they own and control.”117 Citing Page, Bartels, and Gilsen, Pearlstein noted, “the

preferences of wealthy individuals and business interests have far more impact on public policy

than the preferences of the poor and middle class.”118 In addition to campaign funding issues,

Pearlstein also touched on disparities between economic classes of U.S. citizens and the demise

of representative democracy, noting that these issues breed resentment and further prejudice in

the population.119 Regarding Citizens United, Pearlstein opined that “under the guise of

113 M. C.Alexander,

“Citizens United and Equality Forgotten, ” New York University Review of Law & Social Change 35, no. 3 (2011): 501. 114 M. C.Alexander, “Citizens United and Equality Forgotten, ” New York University Review of Law & Social Change 35, no. 3 (2011): 505. 115 M. C.Alexander, “Citizens United and Equality Forgotten, ” New York University Review of Law & Social Change 35, no. 3 (2011): 509. 116 S. Pearlstein, Can American Capitalism Survive? New York: St. Martin's Press, 2018, 158. 117 S. Pearlstein, Can American Capitalism Survive? New York: St. Martin's Press, 2018, 158. 118 S. Pearlstein, Can American Capitalism Survive? New York: St. Martin's Press, 2018, 159. 119 S. Pearlstein, Can American Capitalism Survive? New York: St. Martin's Press, 2018.

protecting free speech, the Court has now created a [C]onstitutional right to bribe elected

officials, with the prize going to the highest bidder.”120

Martin Gilens theorized that “as money becomes more critical to winning elections,

pleasing the people who can supply that money naturally becomes more important to office

seekers and officeholders.”121 Gilens goes on to explain the way that campaign donors are often

open to speaking about their expectations for candidates whose elections they are funding.

These donors are routinely hopeful that their contributions will help shape the policy decisions of

the elected officials or that candidates who are already aligned with the donors’ thoughts are

elected.122 Regarding representative democracy, Gilens proposed the idea that should electoral

candidates attempt to appeal more to potential donors or interest groups instead of the majority

of voters, even electoral pressures may work against our democracy. 123 Gilens’ research

suggested that “by shifting the source of political contributions away from the most affluent,

campaign finance reform might help equalize responsiveness to more- and less-well-off

citizens.124 Prior to Citizens United, regulations placing limitations on political campaign funding

had a chance at accomplishing this task.

The issue of corporations being afforded the same protections as individuals regarding

free speech was explored by Bebchuk and Jackson. They questioned, “who should have the

power to decide whether a corporation will engage in political speech.”125 Their article analyzed

120 S. Pearlstein, Can American Capitalism Survive? New York: St. Martin's Press, 2018, 175. 121 M. Gilens, Affluence and Influence: Economic Inequality and Political Power in America. Princeton: Princeton University Press, 2014, 197. 122 M. Gilens, Affluence and Influence: Economic Inequality and Political Power in America. Princeton: Princeton University Press, 2014, 197. 123 M. Gilens, Affluence and Influence: Economic Inequality and Political Power in America. Princeton: Princeton University Press, 2014, 198. 124 M. Gilens, Affluence and Influence: Economic Inequality and Political Power in America. Princeton: Princeton University Press, 2014, 249. 125 L.A. Bebchuk, & R. J. Jackson Jr., “Corporate Political Speech: Who Decides?” Harvard Law Review 124, no. 83 (2010): 83.

the effects of allowing corporations to speak freely as individuals and the implications of this

decision on shareholders of corporations. They argued that “lawmakers should develop special

rules to govern who may make political speech decisions on behalf of corporations.”126 Their

work described the intricacies of corporate speech and corporate law, specifically when deciding

how a company wishes to engage in political speech.127

Bebchuk and Jackson explored the potential for situations in which a corporation chooses

to engage in free speech against the wishes of its stakeholders--opening a debate as to whether

the president or CEO of a corporation should be allowed to speak for their business partners.

Bebchuk and Jackson explained that a corporation is “not a natural Platonic entity. … It is a legal

arrangement, and its internal allocation of authority is a product of legal rules.”128 They explained

that under current corporate law, “the distribution of decision-making power is governed to a

substantial extent by state law… however, for the large, publicly traded corporations… there are

additional layers of federal law that supplement and occasionally override state law.”129

Corporate law that currently governs who holds decision-making power within a

corporation allocates no power to shareholders and no mandatory disclosure regulations for its

investors.130 This allows the board to “delegate corporate political speech decisions to

management,” leaving shareholders of donor companies without a say in where their money goes

and who their corporation supports.131 One of the questions posed in this article was whether the

126 L.A. Bebchuk, & R. J. Jackson Jr., “Corporate Political Speech: Who Decides?” Harvard Law Review 124, no.

83 (2010): 83-84. 127 L.A. Bebchuk, & R. J. Jackson Jr., “Corporate Political Speech: Who Decides?” Harvard Law Review 124, no.

83 (2010): 86. 128 L.A. Bebchuk, & R. J. Jackson Jr., “Corporate Political Speech: Who Decides?” Harvard Law Review 124, no.

83 (2010): 86. 129 L.A. Bebchuk, & R. J. Jackson Jr., “Corporate Political Speech: Who Decides?” Harvard Law Review 124, no.

83 (2010): 86. 130 L.A. Bebchuk, & R. J. Jackson Jr., “Corporate Political Speech: Who Decides?” Harvard Law Review 124, no.

83 (2010): 87. 131 L.A. Bebchuk, & R. J. Jackson Jr., “Corporate Political Speech: Who Decides?” Harvard Law Review 124, no.

83 (2010): 88.

decision in Citizens United allowed for the protection of shareholders of corporations that

opposed the political views of which the corporation was funding. They suggested that “there

are good reasons to believe, however, that the interests of directors and executives with respect to

political spending often diverge from those of shareholders.”132 This study showed that based on

the willingness of corporate executives to contribute to political spending out of their personal

wealth, executives are more likely to spend politically from their corporate treasuries following

Citizens United. 133 As corporations are permitted to spend directly from their treasuries on

political funding, shareholders are exposed to the occurrence where the corporation they are

implicated with makes political decisions that the shareholders do not wish to be individually

associated with.

Bebchuk and Jackson proposed that shareholders should be enabled to “opt out” of

corporate political spending, requiring public corporations to disclose where they are

contributing politically, especially through intermediaries.134 This article argued that for a Court

to decide whether First Amendment protections have been violated, it “must first conclude that

the bearer of the right wishes to speak.”135 Allowing a corporation the right to utilize First

Amendment rights to speak “leaves open the question as to what legal rules should determine

whether the corporation wishes to speak.”136 Without accounting for the wishes of corporate

shareholders, Bebchuk and Jackson showed that Citizens United fails to provide adequate

132 L.A. Bebchuk, & R. J. Jackson Jr., “Corporate Political Speech: Who Decides?” Harvard Law Review 124, no.

83 (2010): 90. 133 L.A. Bebchuk, & R. J. Jackson Jr., “Corporate Political Speech: Who Decides?” Harvard Law Review 124, no.

83 (2010): 95. 134 L.A. Bebchuk, & R. J. Jackson Jr., “Corporate Political Speech: Who Decides?” Harvard Law Review 124, no.

83 (2010): 103-104. 135 L.A. Bebchuk, & R. J. Jackson Jr., “Corporate Political Speech: Who Decides?” Harvard Law Review 124, no.

83 (2010): 108. 136 L.A. Bebchuk, & R. J. Jackson Jr., “Corporate Political Speech: Who Decides?” Harvard Law Review 124, no.

83 (2010): 108.

protections for First Amendment speech for those who do not wish to partake in certain political

spending.

A 2014 study by Martin Gilens and Benjamin Page explored theories of American

politics, examining the variations in policy-making decisions between elites, interest groups, and

average American citizens. They explained that theories of Economic-Elite Domination predict

that “United States policy making is dominated by individuals who have substantial economic

resources, i.e., high levels of income or wealth--including, but not limited to, ownership of

business firms.”137 These theories further predicted “positive, significant, and substantial

influence upon policy by economic elites.”138 In this statistical data analysis, Gilens and Page

examined survey results from the general public of the United States in which citizens were

asked whether they favored or opposed certain policy changes. These answers were then

compared based on income level to gauge the impact of the economic elite’s opinions on policy

decisions in the United States. Gilens and Page provide startling differences between the ability

of economic elites to enact policy changes versus the ability of average citizens. The study

explains that “when the preferences of economic elites and the stands of organized interest

groups are controlled for, the preferences of the average American appear to have only a

minuscule, near-zero, statistically non-significant impact upon public policy.”139 When analyzing

election outcomes where the preferences of the elite and the average citizen varied, the study

found that “when a majority of citizens disagrees with economic elites or with organized

interests, they generally lose.”140 These troubling statistics are made exponentially more

137 M. Gilens & B.I. Page,

“Testing Theories ofAmerican Politics: Elites, Interest Groups, andAverage Citizens, ” Perspectives on Politics 12, no. 3 (2014): 566. 138 M. Gilens & B.I. Page, “Testing Theories ofAmerican Politics: Elites, Interest Groups, andAverage Citizens, ” Perspectives on Politics 12, no. 3 (2014): 569. 139 M. Gilens & B.I. Page, “Testing Theories ofAmerican Politics: Elites, Interest Groups, andAverage Citizens, ” Perspectives on Politics 12, no. 3 (2014): 575. 140 M. Gilens & B.I. Page, “Testing Theories ofAmerican Politics: Elites, Interest Groups, andAverage Citizens, ” Perspectives on Politics 12, no. 3 (2014): 576.

frightening when considering the divergence from jurisprudence regarding the regulation of

campaign spending by wealthy corporations.

A random field experiment done by Joshua Kalla and David Broockman showed in new

light how contributing to the campaign funds of Congressmen allowed for access to these

individuals. This experiment was conducted by having organizational groups attempt to gain

access to elected congressional officials and randomly assign whether the organization would

disclose their donor status to the offices of the officials or not. This experiment sought to find

“how legislators treat donors and nondonors, not how individuals who donated are treated by the

legislators to whom they have and have not contributed.”141 Their article explained that

“legislators appear aware that money can affect whether they are reelected, as they choose to

spend several hours each day raising it.”142

Kalla and Broockman revealed that congressional offices scheduled meetings with

attendees who were not donors only 2.4% of the time, while 12.5% of the offices scheduled

meetings with attendees who were disclosed to have contributed to their campaign. Further, their

study shows that when the congressional office staff knew that a meeting was with a nondonor, a

staff member took the meeting, whereas meetings with actual Congress members occurred only

when the legislator was aware of who the donor making the meeting was and how much they had

donated.143 The findings in this study suggest that “the vast majority of Americans who cannot

afford to contribute to campaigns in meaningful amounts are at a disadvantage when attempting

to express their concerns to policy makers.”144

141 J. L. Kalla, & D. E. Broockman,

“Campaign Contributions FacilitateAccess to Congressional Officials:A Randomized Field Experiment, ” American Journal of Political Science 60, no. 3 (2016): 548. 142 J. L. Kalla, & D. E. Broockman, “Campaign Contributions FacilitateAccess to Congressional Officials:A Randomized Field Experiment, ” American Journal of Political Science 60, no. 3 (2016): 546. 143 J. L. Kalla, & D. E. Broockman, “Campaign Contributions FacilitateAccess to Congressional Officials:A Randomized Field Experiment, ” American Journal of Political Science 60, no. 3 (2016). 144 J. L. Kalla, & D. E. Broockman, “Campaign Contributions FacilitateAccess to Congressional Officials:A Randomized Field Experiment, ” American Journal of Political Science 60, no. 3 (2016): 555.

In support of Citizens United, Hubbard and Kane argue that the regulation of campaign

finance is disruptive to democracy, stating, “the changes in campaign finance rules turned

American politics into a classic case of monopolistic competition… protected by government

regulation that diminished innovative policy ideas, bipartisanship, and fiscal responsibility.”145

Their article questions whether “politics is easier to corrupt when the money is controlled by two

parties or when the money is diffuse.”146 They argue that Citizens United “created a level playing

field… shifting the structure of the political market in favor of small donors and causes.”147 In

suggesting that Citizens United leaves room for new ideas in United States’ elections, Hubbard

and Kane fail to acknowledge the ways that political campaigns having billions of dollars at their

disposal can be damaging to democracy and the lack of an emergence of a new, large, third party.

Their article also fails to acknowledge how the unlimited spending of ultra-wealthy corporations

drowns out the voices of the small donors and causes that they allege are assisted by Citizens

United.

The right to an undiluted vote, provided by the Equal Protection Clause and the Voting

Rights Act (VRA), includes a focus on eliminating discrimination through the redrawing of voter

districts, also known as gerrymandering, to favor one party over another. Section 2 of the VRA is

acted upon when minority groups, historically racial, are facing dilution of their votes in

comparison to the votes of non-protected classes. According to Heather Gerken,

a state could take advantage of this type of voting pattern by drawing district lines that give whites a majority in a disproportionate share of districts…Section 2 protects minority voters from this type of inquiry, which we call “vote dilution, ” by requiring

145 G. Hubbard & T. Kane,

“In Defense of Citizens United: Why Campaign Finance Reform ThreatensAmerican Democracy, ” Foreign Affairs 92, no. 4 (2013): 127. 146 G. Hubbard & T. Kane, “In Defense of Citizens United: Why Campaign Finance Reform ThreatensAmerican Democracy, ” Foreign Affairs 92, no. 4 (2013): 132. 147 G. Hubbard & T. Kane, “In Defense of Citizens United: Why Campaign Finance Reform ThreatensAmerican Democracy, ” Foreign Affairs 92, no. 4 (2013): 132.

states to draw district lines that offer racial minorities a fair chance to elect their candidates of choice. 148

While these protections have been only recently afforded to racial minorities, there is a newly

forthcoming trend of redrawing voting districts based on socio-economic status. Returning to the

article by Klumpp, Mialon, and Williams, following Citizens United, in 2010, the Republican

State Leadership Committee orchestrated an independent expenditure strategy in which their

goal was to “gain control over each state’s redistricting process and thereby influence the

outcomes of US congressional races.”149

This strategy, the Redistricting Majority Project, or REDMAP, was funded through

political contributions from corporations allowed by Citizens United. Documents from the IRS

show that major contributors to this strategy, whose donations totaled over $30 million, were the

US Chamber of Commerce, American Justice Partnership, Blue Cross Blue Shield, Verizon,

AT&T, Walmart, Comcast, Exxon Mobil, Home Depot, and others.150 This strategy involved

making significant investments to the campaigns of Republican candidates in states that held

high potential for securing seats that would allow the party to gain control of the legislature.151

Following the election cycle in 2010, the Republican party was able to secure over 50 house

seats through use of the REDMAP strategy, which would not have been possible without

Citizens United. 152

148 Heather K. Gerken, “Understanding the Right to an Undiluted Vote, ” Harvard Law Review 114, no. 6 (2001):

1666.

149 T. Klumpp, H.M. Mialon, & M.A. Williams,

“The Business ofAmerican Democracy: Citizens United, Independent Spending, and Elections, ” Journal of Law and Economics 59 (2016), 34. 150 T. Klumpp, H.M. Mialon, & M.A. Williams, “The Business ofAmerican Democracy: Citizens United, Independent Spending, and Elections, ” Journal of Law and Economics 59 (2016), 34-35. 151 T. Klumpp, H.M. Mialon, & M.A. Williams, “The Business ofAmerican Democracy: Citizens United, Independent Spending, and Elections, ” Journal of Law and Economics 59 (2016), 35. 152 T. Klumpp, H.M. Mialon, & M.A. Williams, “The Business ofAmerican Democracy: Citizens United, Independent Spending, and Elections, ” Journal of Law and Economics 59 (2016), 35.

The Dissent in Citizens United expresses many fundamental discrepancies within the

majority opinion, and Kathleen Sullivan describes a major issue described within the Dissent.

She explains that “equal protection jurisprudence treats only certain grounds of differentiation…

as suspect or ‘invidious,’ while treating all others (age, disability, and economic status) as

presumptively permissible.”153 The decisions in both Citizens United and Shelby did not regard

economic status as grounds for equal protection, thus negating concerns that allowing wealthy

corporations to contribute freely to election campaigns was a discriminatory action toward the

majority of individuals who are not in control of large, wealthy corporate treasuries. Sullivan

further explains that the Citizens United dissenters found “the source limitations on corporate

independent expenditures easily justified by a government interest in preventing ‘corruption’ of

the political process, with ‘corruption’ broadly defined to cover not mere quid pro quo exchanges

but something much broader called ‘undue influence.’”154

Sullivan describes Justice Stevens’ dissent as arguing that “source limitations… will limit

the deployment of resources ‘on a scale few natural persons can match,’ and avert the ‘drowning

out of noncorporate voices’ through ‘corporate domination of the airwaves prior to an

election.’”155 This drowning of noncorporate voices is something that should be acknowledged as

discrimination and afforded equal protection, according to Sullivan, who further states that “the

antidiscrimination aspect of this view rests on an understanding that speech is embodied in a

kind of ideological hierarchy in which mainstream ideas held widely at any given time by

majorities or the socially powerful predominate over the systematically subordinated voices of

dissent.”156

153 K. M. Sullivan, “Two Concepts of Freedom of Speech, ” Harvard Law Review 124, no. 143 (2010: 146.

154 K. M. Sullivan, “Two Concepts of Freedom of Speech, ” Harvard Law Review 124, no. 143 (2010: 147.

155 K. M. Sullivan, “Two Concepts of Freedom of Speech, ” Harvard Law Review 124, no. 143 (2010: 148.

156 K. M. Sullivan, “Two Concepts of Freedom of Speech, ” Harvard Law Review 124, no. 143 (2010: 148.

In 2005, Mark Alexander examined the influence of money in United States politics as

modern vote dilution in violation of the Equal Protection Clause. His article focuses on

concentrations of political power and argues that “political power is concentrated in the hands of

the wealthy… the modern concentration of power is the flip side of the vote dilution coin

addressed in the 1960s.”157 Alexander explains the ways in which political contributions allow

access to elected officials and that “the few who control the financing get much in return; not

only are they lavished with attention during the campaign, they get special access and power

when the candidates they support are in office.”158 Written pre-Citizens United, this article

examines precedent that had been set by Buckley and McConnell.

Alexander discusses the voting rights cases of the 1960’s and explains how the Court

rejected the vote dilution that came from malapportionment and created the one-person, one-vote

rule. Further, the Court found that “the Constitution endorsed a principle of equality of political

participation for all Americans.”159 The article highlights how in Reynolds v. Sims (1964), the

Court held that the “The Equal Protection Clause guarantees the opportunity for equal

participation by all voters in the election of state legislators.”160 The Court found that as political

power was concentrated for some and missing from others, the Constitution was being violated.

According to Alexander, “the Voting Cases thus established that the Fourteenth Amendment

Equal Protection Clause demanded equality of representation and equality of participation in the

selection of representatives.”161 Alexander cites Wesberry v. Sanders (1964), stating:

157 M. Alexander,

“Money is Political Campaigns and Modern Vote Dilution, ” Minnesota Journal of Law & Inequality 23, no. 2 (Dec. 2005): 240. 158 M. Alexander, “Money is Political Campaigns and Modern Vote Dilution, ” Minnesota Journal of Law & Inequality 23, no. 2 (Dec. 2005): 251. 159 M. Alexander, “Money is Political Campaigns and Modern Vote Dilution, ” Minnesota Journal of Law & Inequality 23, no. 2 (Dec. 2005): 259. 160 M. Alexander, “Money is Political Campaigns and Modern Vote Dilution, ” Minnesota Journal of Law & Inequality 23, no. 2 (Dec. 2005): 260. 161 M. Alexander, “Money is Political Campaigns and Modern Vote Dilution, ” Minnesota Journal of Law & Inequality 23, no. 2 (Dec. 2005): 261.

… each and every citizen has an inalienable right to full and effective participation in the political processes… full and effective participation… requires, therefore, that each citizen have an equally effective voice in the election of members of his state legislature. 162

Holding that vote dilution violates the Constitution, the Voting Cases effectively established that

this dilution is in violation of the principles of representative democracy. Historically applied to

cases of racial discrimination, Alexander argues that modern vote dilution through an inundation

of money in U.S. politics should be handled with the same level of judicial concern.

Alexander suggests that “in speaking about vote dilution, the Court equally rejected the

concentration of power that had previously rested in the hands of the few,” and proposes that “we

apply the Voting Cases and the concomitant supporting principles of equality to the current

analysis of campaign finance reform.”163 The relevance between the Equal Protection afforded by

the Voting Cases and the current situation in U.S. democracy is rooted in equality. As stated by

Alexander, “the more that people can be involved on an equal footing in the process of

governance, the more they can participate in the process of governance.”164 He further opines that

“money in politics creates inequality in the American representative democracy, but we have

seen a commitment to equality in the penumbras of the structure of the republic, the Voting

Amendments, and the Equal Protection Clause of the Fourteenth Amendment.”165

Finally, it is argued by Alexander that classic quid pro quo corruption is not the only

compelling governmental interest as held in Buckley, nor is the potential for undue influence as

held in McConnell. Instead, he suggests a third compelling interest: equality, as articulated in the

162 M. Alexander,

“Money is Political Campaigns and Modern Vote Dilution, ” Minnesota Journal of Law & Inequality 23, no. 2 (Dec. 2005): 264. 163 M. Alexander, “Money is Political Campaigns and Modern Vote Dilution, ” Minnesota Journal of Law & Inequality 23, no. 2 (Dec. 2005): 285. 164 M. Alexander, “Money is Political Campaigns and Modern Vote Dilution, ” Minnesota Journal of Law & Inequality 23, no. 2 (Dec. 2005): 287. 165 M. Alexander, “Money is Political Campaigns and Modern Vote Dilution, ” Minnesota Journal of Law & Inequality 23, no. 2 (Dec. 2005): 288.

Voting Cases.166 Had this article been written post-Citizens United, Alexander would have been

faced with the overturning of Austin and a section of McConnell; however, the Court’s

divergence from making efforts to prevent corruption make his argument regarding equality even

more relevant.

V. Discussion

If the American government is to continue to be considered a representative democracy,

we must recognize that the provisions granted by the Citizens United decision stand against the

freedoms and liberties granted to its citizens through this democratic system. The theoretical

democratic concepts that I have introduced are consistently threatened by the divergence of the

Supreme Court from the precedents established to regulate financial contributions to electoral

campaigns in the effort to prevent corruption within U.S. politics.

The foremost problem with the holding in Citizens United is that through allowing

corporations the same protected speech as American citizens, the Supreme Court effectively

allowed for the drowning out of the voices of individuals who are unable to contribute to the

same financial level as wealthy elites. This has been found true in multiple statistical studies

referenced earlier and diminishes the American representative democratic system. The principle

of effective participation in American politics is replaced by voter apathy due to American

citizens becoming aware of the legal corruption affecting the electoral system, and how

representative democracy is only representative of wealthy corporations. Effective participation

as defined by Dahl is not met in the United States following Citizens United, as individuals no

longer possess an equal opportunity to express their preferences for electoral outcomes.

166 M. Alexander,

“Money is Political Campaigns and Modern Vote Dilution, ” Minnesota Journal of Law & Inequality 23, no. 2 (Dec. 2005): 291.

Considering the Citizens United Court overturning precedent that sought to prevent

corruption and inequality, I argue that U.S. campaign financing needs to be reexamined for

Constitutional violations of both Equal Protection and participatory equality. While free speech

is of utmost importance to U.S. citizens and should continually be protected by the Constitution,

affording these protections to corporate bodies the same as individual citizens should be frowned

upon. a corporation is a legal arrangement and is not an individual citizen; and the shareholders

of these corporate bodies may not wish to engage in political speech but are now forced to when

their company’s management decides it fit.

When pondering the protection of free speech, we must also consider citizens having the

freedom to not engage in speech if they do not wish to. By allowing corporate leaders to make

political decisions on behalf of their shareholders, under current campaign finance regulations,

the shareholders are effectively forced to engage in political speech even if they do not wish to or

if they disagree with the speech that the corporation is making. United States’ citizens are

guaranteed the right to choose which party they associate with and how they vote;being forced to

engage in political speech through the companies that they own is in violation of these rights. As

corporations are not permitted to vote, I argue that they should also not be permitted to

participate in elections through the funding of electoral campaigns.

Participatory equality is a cornerstone to representative democracy. Returning to Dahl’s

theories, voting equality should be equal to all adults in a society under which they will be

governed.167 This concept of equality in voting is not respected in the United States when

electoral candidates are hyper-focused on securing funding for their campaigns over focusing on

the needs of all individual citizens within their districts. As displayed in this thesis, candidates

and elected officials have admitted that money affects how accessible they will be to constituents

167 R.A. Dahl, Democracy and Its Critics, New Haven, Ct: Yale University Press, 1989, 109.

and the issues they will fight for. As campaigns continue to exponentially grow in their financial

burdens, the voices of the majority middle- and low- class citizens will effectively disappear in

the sea of money offered by wealthy corporations with political interests. The United States as a

government and a society has long favored wealthy, white, middle-aged men, and it is the duty of

the Constitution and its Amendments to protect the remainder of the population from this

favoritism.

Equally important to protecting the voice of non-wealthy individual citizens is the need to

protect United States elections from corruption. The Court has a duty to protect the government

from corruption in more ways than solely quid pro quo actions and undue influence. While the

definitions and types of corruption are not an issue for this thesis, I argue that the unequal effects

of citizens and now, corporations, on elections is absolutely an example of corruption in the

United States. If the governmental system is based on equality in participation, the allowance of

wealthy corporations to have exponentially more influence on the electoral process than non-elite

citizens is a direct violation of the goals of American democracy. As political candidates and

elected officials spend more of their time and energy on the need to raise money for their current

or future campaigns, money has become of utmost importance to elections instead of the needs

of the electorate.

An absence of regulations on non-voting corporations’ influence in elections, decided

under the guise of free speech, shows disturbing apathy from the Court towards the non-elite

majority of U.S. citizens. When considering the distorted influence that not only wealthy

individual citizens, but also wealthy corporations, have on the United States’ government, the

governmental system appears to be more of a plutocracy than a representative democracy. These

regulations do not harm only the representation of citizens in the United States, but also affect

the ability of each qualifying citizen to run for elected offices.

The ability of a citizen to not only run for a presidential office but to make it far enough

to gain the party nomination, for example, is a feat that cannot be successful without wealth,

whether through massive personal savings or through having wealthy corporate connections.

Without having individual start-up funding or the time without needing to work in which a

candidate can focus solely on securing funding, the chances of running a successful campaign

that ends in securing an elected position are slim.

Most United States adults work over 40 hours per week, but an alarming 37.2 million

citizens were living at or below the poverty line in 2020 despite these working hours.168 As wage

inequality in the U.S. continues to grow, the inequalities that result from allowing unregulated

campaign finance will also expand. As increasing amounts of U.S. citizens are becoming aware

of the blatant corruption in elections, secondary effects such as voter apathy are also on the rise.

Through individual citizens believing that they have no power in politics, it is possible to observe

the plutocratic tendencies that are growing ever-present in the United States. The wealthy elites

of the U.S. should not be able to have a louder voice than the non-wealthy, but they gain this

power through simply having access to mass sums of money.

In a plutocracy, the government is run by the wealthy for the wealthy, either directly or

indirectly. In these systems, only the wealthy citizens can effectively influence electoral

outcomes and policy decisions. Further, the policies that are implemented tend to only benefit the

wealthy instead of the electorate. Plutocracies do not provide equal elections or equality in

participation or representation, nor do they rule for the common good.

168 Bureau, U. C. “Income and Poverty in the United States: 2020, ” October 18, 2021.

Earlier, I provided an overview of the Voting Cases of the 1960’s and the goal to protect

equality in United States elections. While the notion of a right to an undiluted vote has

historically been reserved for the fight against racial prejudice, I argue that this protection should

be reviewed and enforced to protect non-elite citizens from vote dilution. While compiling my

research for this thesis, I was unable to find many sources with authors who share this opinion.

Mark Alexander explored this idea in 2005, but his article cannot consider the outcomes from

Citizens United as it was written five years prior to the decision. Alexander does, however,

explain how the wealthy can influence elections and enjoy special privileges following

campaigns including access to elected officials that the public does not have.169

The Voting Cases largely focused on redistricting based on racial lines, and I argue that

the same principles of Equal Protection can be afforded in modern times based on financial

inequality. As demonstrated by the REDMAP Strategy, redistricting is now an issue that is

affected by the corporate funding of elections. By being enabled to use corporate money to boost

the campaign funding of one party’s candidates in traditionally swing states, the REDMAP

Strategy displayed how money allows that party’s candidates to be elected over those with less

funding and, in turn, take control of the House or Senate. This type of redistricting, however, is

not the only way in which the votes of U.S. citizens are being diluted.

Following Citizens United, vote dilution occurs when electoral candidates express more

care and regard to the opinions and views of wealthy potential donors than those of non-elite

citizens. Instead of focusing on lobbying for the best interests of their constituents, candidates

and elected officeholders tend to give more time and effort to the interests of the wealthy donors

who enabled them to secure an elected position. Through this action, the governmental actions of

169 M.Alexander,

“Money is Political Campaigns and Modern Vote Dilution, ” Minnesota Journal of Law & Inequality 23, no. 2 (Dec. 2005): 244.

the U.S. are skewed to further the policy preferences of the wealthy instead of the equally

represented population of citizens. Further, when the interests of non-elite citizens are second

ranking in importance after the views of wealthy political donors, representative democracy is

left unable to function as a representation of the total population of the United States.

VI. Conclusion

In this thesis, I have described theoretical principles of representative democracy. I have

compared these principles to the current governmental system in the United States through

analyzing Supreme Court decisions and legislation regulating corporate campaign financing. I

argue that the holdings in Citizens United are contributing to the diminishment of representative

democracy in the United States. The vote dilution that is occurring through the wealthy, elite

members’ having louder voices in political outcomes diminishes equal representation and

participatory equality in the U.S. governmental system.

Through exploring political theory and legal resources, I have shown that political

candidates and elected officials give policy and time preferences to individuals and corporations

that have helped to fund their campaigns. This preferential treatment does not enable individual

citizens, who are unable to make substantial contributions to political campaigns, to have their

voices and needs heard, thus failing to meet the goals of representative democracy. In a system

where wealthy voices are amplified and low- and middle-class voices are ignored, democracy

fails and plutocracy reigns.

Although the Citizens United majority failed to recognize unlimited corporate campaign

funding as corruption in the United States, I and additional academics disagree based on the

evidence found in statistical studies of the effects of political contributions on the responsiveness

and policy decisions of elected officials. The Supreme Court has a duty to protect all U.S.

citizens from corruption within politics, not only the wealthy. As protections against corruption

are continuously eroded, U.S. institutions of democracy will continue to be diminished, and the

governmental system will continue toward plutocracy.

I argue that a logical approach to reinstating protections against corruption is to

reconsider financial class as a protected group and protect low- and middle-class citizens from

having their votes diluted and drowned as was seen in the Voting Rights Cases. These cases were

the result of unfair redistricting along racial lines, and now, as seen through the REDMAP

Strategy, unfair redistricting is occurring through corporate campaign funding. I hope that the

Supreme Court will soon hear arguments based on this logic, and voter equality and

representative democracy will be on the path to restoration within the United States.

Future legal research is required to fight the refusal of the Court to acknowledge financial

inequality as a protected class. Additionally, legal analysis is required to strongly argue that

unregulated corporate campaign donations constitute vote dilution in U.S. elections. The

disenfranchisement of voters is no new issue in the United States. Between the inability of

individual citizens to cast votes based on their felon status, immigration status, and

government-issued identification status, ensuring participatory equality is fragile to begin with.

When corporations, whoI argue should not be designated as U.S. citizens, are allowed to

contribute more to politics than disenfranchised citizens, the equal representation and equality

sought by democracy are not able to be met.

For the United States to secure its democratic goals for equality within political systems,

the decisions in Citizens United, Shelby, and Rodriguez need to be reconsidered before the Court,

and their profound harms must be rectified. If regulations on political campaign funding were

restored and enforced, there is a chance that the amount of money required to fund a successful

campaign would not reach billions of dollars, and, hopefully, average citizens might have a

renewed chance at participating in politics at the same level as the wealthy elite. Through

additional research and legal analysis, I hope to see participatory equality and equal

representation restored within the United States.

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