What Would Happen If Citizens United Were Overruled?
Prepared with research and writing assistance from ChatGPT (OpenAI).
Sources and references are provided so readers can examine the evidence for themselves.
Summary
Overruling Citizens United v. Federal Election Commission would not remove money from American politics, prohibit corporations from political activity, or automatically impose limits on campaign spending. Its most important consequence would be to restore greater authority to Congress and the states to regulate independent election spending by corporations and unions. The exact result would depend heavily on how the Supreme Court overruled the decision and what laws governments subsequently enacted.
The 2010 decision held that corporations and unions have a First Amendment right to make unlimited independent expenditures advocating the election or defeat of candidates. It did not legalize direct corporate contributions to candidates; those remained prohibited.
Overruling the decision could therefore permit laws restricting corporate and union treasury spending in elections. Depending on the scope of a new ruling—and on related precedents—it could also provide a legal foundation for stronger regulation of super PACs and other outside spending. It would not automatically eliminate super PACs, however, because their legal status also rests on subsequent court decisions, particularly SpeechNow.org v. FEC.
The likely practical consequences would include less unlimited outside spending if lawmakers enacted new restrictions, potentially less political leverage for very large donors and organizations, and a larger relative role for candidates, parties, and smaller donors. There would also be an important tradeoff: restrictions on independent expenditures necessarily restrict political advocacy, which is why the Citizens United majority regarded such restrictions as unconstitutional.
The Consequences of Overruling Citizens United
In 2010, the Supreme Court fundamentally changed American campaign-finance law with its decision in Citizens United v. Federal Election Commission. The Court ruled that the government generally could not prohibit corporations and labor unions from using their own money for independent political communications advocating the election or defeat of candidates.
The decision rested on a First Amendment principle. Political speech, the Court concluded, could not receive less constitutional protection simply because the speaker was a corporation or other association. The Court also concluded that independent expenditures—spending that is legally independent of a candidate—did not create the kind of quid-pro-quo corruption that could justify prohibiting that speech.
Overruling Citizens United would reverse or substantially modify those constitutional conclusions. But understanding the consequences requires distinguishing between what would happen immediately and what governments could subsequently choose to do.
Congress would regain regulatory authority
Perhaps the most important consequence would be a transfer of authority from the courts back to elected governments.
Today, Congress cannot simply enact a law prohibiting corporations from making independent expenditures because Citizens United holds that such a prohibition violates the First Amendment.
If that constitutional barrier disappeared, Congress could again establish restrictions on corporate and union independent expenditures, subject to whatever First Amendment rules the Supreme Court established in the replacement decision.
States could similarly regulate spending in state and local elections. This is significant because Citizens United invalidated restrictions that existed in numerous states as well as at the federal level. Research comparing states affected differently by the ruling has found that removing restrictions on independent expenditures produced measurable changes in both election spending and subsequent public policy.
But overruling Citizens United would not itself write those new campaign-finance laws. Legislatures would still have to decide what restrictions to adopt.
Unlimited corporate election spending could again be restricted
Before Citizens United, federal law generally prevented corporations and unions from using their treasury funds for certain communications expressly advocating candidates and for certain electioneering communications close to elections.
The Court struck down those restrictions on independent spending while leaving the prohibition on direct corporate contributions to candidates intact.
If Citizens United were overruled, Congress could potentially restore restrictions of this kind.
That does not mean corporations would necessarily be silenced politically. The permissible rules would depend on the new Supreme Court decision. Corporations might still operate political action committees, communicate about public issues, lobby government, encourage political participation and engage in political speech that remained protected under whatever constitutional standard replaced Citizens United.
The central change would be that unlimited corporate treasury spending expressly intended to influence elections would no longer necessarily enjoy the constitutional protection Citizens United gives it today.
Super PACs present a more complicated question
It is common to say that Citizens United created super PACs. That is an understandable shorthand, but legally it is incomplete.
Citizens United established the constitutional protection for independent expenditures. Shortly afterward, the federal appeals court decision SpeechNow.org v. FEC applied related reasoning to organizations that make only independent expenditures. That combination produced the modern super PAC: an organization that may accept contributions of unlimited size and spend unlimited amounts independently of candidates.
Consequently, simply reversing the precise holding of Citizens United would not necessarily make every super PAC disappear overnight.
A broader Supreme Court ruling reconsidering the constitutional treatment of independent political spending could, however, give Congress considerably more power to impose limits on the funding and operation of outside political organizations.
The political importance of extremely large donors could decline
One of the major changes in the post-Citizens United system has been the growth of organizations capable of accepting extremely large contributions.
Although the case is usually discussed in terms of corporations, wealthy individuals have become particularly important sources of super-PAC money. The Brennan Center notes that the visible beneficiaries of the post-Citizens United system have often been wealthy megadonors rather than ordinary operating corporations.
This distinction matters.
Overruling Citizens United narrowly—by restoring only restrictions on corporate treasury spending—would not automatically prevent a wealthy individual from spending personal money on political advocacy. Other Supreme Court precedents protect individual expenditures.
A broader restructuring of campaign-finance constitutional law could give lawmakers greater power over some forms of outside political financing, but additional precedents would have to be addressed.
Therefore, overruling Citizens United alone should not be described as eliminating unlimited political spending by wealthy individuals.
Candidates and political parties could become relatively more important
If new laws significantly reduced outside expenditures, money subject to ordinary campaign contribution limits could become relatively more important.
Candidates would still solicit contributions. Political parties would still raise money. Political organizations would continue operating. People would continue spending money to communicate political ideas.
But the balance among participants could change.
A system in which fewer millions of dollars flowed through independently financed organizations could give candidate committees, parties and ordinary contributors a larger share of the overall political conversation.
Whether that would improve representation is a separate normative question. It would depend upon the regulations enacted afterward and how political donors and organizations adapted to them.
Dark money would not automatically disappear
Another important misconception concerns “dark money”—political spending for which the original source of funding is not publicly disclosed.
Citizens United actually upheld disclosure and disclaimer requirements. The Court reasoned that disclosure could provide voters with information about who was financing political communications.
Nevertheless, organizations operating under other provisions of federal law have been able to participate in elections without publicly identifying all of their underlying donors, and critics of the current system argue that the post-Citizens United environment greatly expanded opportunities for undisclosed political financing.
Overruling Citizens United therefore would not automatically solve the disclosure problem.
Congress would have to enact appropriate disclosure rules, and those rules would themselves have to comply with the First Amendment.
Public policy could change—but the direction cannot simply be assumed
The effects could extend beyond campaigns themselves.
A useful natural experiment occurred because Citizens United forced some states to abandon restrictions on corporate independent expenditures while producing much less legal change in states that already permitted them.
A peer-reviewed study published in the American Political Science Review found that states forced to remove those restrictions subsequently adopted more policies favorable to corporate interests on issues in which corporations had a substantial financial stake. The researchers did not find comparable changes in policy areas without clear corporate economic interests.
That provides evidence that campaign-finance rules can affect government policy rather than merely changing who purchases political advertising.
It does not, however, establish that reversing Citizens United would automatically reverse particular tax, labor, environmental or economic policies. Elections, lobbying, public opinion, party control, institutional rules and many other factors influence legislation.
There is a genuine First Amendment tradeoff
Any account of overruling Citizens United should include the argument on the other side.
The majority’s central concern was not simply protecting corporations. It was protecting political expression from government restriction.
The Court reasoned that political speech does not lose First Amendment protection because people choose to speak through an association or corporation. It consequently treated restrictions on independent political expenditures as restrictions on political speech itself.
Supporters of the decision therefore warn that giving government broader power to regulate election spending also gives incumbent legislators power to regulate organizations criticizing them.
Critics answer that unlimited spending permits concentrated economic resources to produce concentrated political influence, and they dispute the Court’s conclusion that independent expenditures cannot create corruption or its appearance. The empirical literature continues to examine those effects; one peer-reviewed state-level study found evidence that the campaign-finance changes caused by Citizens United affected subsequent policy outcomes.
That disagreement represents the fundamental constitutional question: when does regulating the political power produced by money become regulation of political speech?
What overruling Citizens United would—and would not—accomplish
The most accurate way to describe the result is therefore not that overruling Citizens United would “get money out of politics.”
Money would remain essential to campaigning. Candidates would still need to advertise, organize, travel, employ staff and communicate with millions of voters. Individuals and organizations would continue participating in politics.
Instead, overruling the decision would principally change who gets to establish the rules.
The Supreme Court currently places significant constitutional restrictions on government’s ability to limit independent election spending. Reversing the decision could return some of that regulatory authority to Congress and state legislatures.
What happened next would depend on the laws those elected governments enacted—and on how broadly the Supreme Court reconsidered the related constitutional precedents governing political expenditures.
Printable References
Federal Election Commission. “Citizens United v. Federal Election Commission.” Summary of the Supreme Court decision, January 21, 2010. Federal Election Commission.
Supreme Court of the United States. Citizens United v. Federal Election Commission, 558 U.S. 310 (2010). Opinion issued January 21, 2010. Discusses corporate and union independent expenditures, political speech, corruption, disclosure and disclaimer requirements.
Brennan Center for Justice. “Citizens United, Explained.” Overview of the decision, subsequent development of super PACs, outside spending and disclosure issues.
Brennan Center for Justice. “Citizens United Five Years Later.” Analysis of super PAC financing, megadonors, corporate spending and dark money following the decision.
La Raja, Raymond J., and Brian F. Schaffner, et al. “Campaign Finance Regulations and Public Policy.” American Political Science Review. Empirical analysis using differences among states affected by Citizens United to examine the relationship between independent-expenditure regulation and public policy.
Akey, Pat; Tania Babina; Greg Buchak; and Ana-Maria Tenekedjieva. “The Impact of Money in Politics on Labor and Capital: Evidence from Citizens United v. FEC.” Stanford Graduate School of Business, Working Paper No. 4187, July 2023.
Abdul-Razzak, Nour; Carlo Prato; and Stephane Wolton. “Citizens United: A Theoretical Evaluation.” Political Science Research and Methods. Analysis of outside political spending and voter welfare under the assumptions underlying the Court’s decision.
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