Citizens United v. FEC: The Book-Ban Answer That Unleashed Super PACs

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The 2002 Bipartisan Campaign Reform Act, known as McCain-Feingold, barred corporations and unions from funding broadcast ads naming a federal candidate within 30 days of a primary or 60 days of a general election. In 2004 the conservative nonprofit Citizens United complained that ads for Michael Moore's Fahrenheit 9/11 broke that rule, and the FEC dismissed the complaint. The group began making its own films, and in 2008 sued preemptively to offer Hillary: The Movie on DirecTV video on demand during primary season. At oral argument in March 2009, Deputy Solicitor General Malcolm L. Stewart said that under Austin v. Michigan Chamber of Commerce the government could ban a corporate-published book or Kindle download advocating against a candidate.

Chief Justice John Roberts withdrew a narrow draft, and the case was reargued. In January 2010 the Court ruled 5 to 4, in an opinion by Anthony Kennedy, that independent political spending by corporations and unions could not be capped. John Paul Stevens read from a 90-page dissent arguing corporations are not we the people. Lower court rulings then allowed super PACs to take unlimited contributions, and 501(c)(4) groups that do not disclose donors became channels for dark money. Outside spending rose from $574 million in 2008 to $1.3 billion in 2012 and $4.5 billion in 2024.

• Campaigns post silent B-roll online and use red boxes on websites to signal outside groups without formal coordination.
• The top 100 individual donors went from 1.5% of federal election spending in 2008 to nearly 16% in 2020.
• A 2016 study found Republican chances in some state legislative races rose 4 to 10 percentage points after the ruling.
• Justice Samuel Alito was seen mouthing not true as Barack Obama criticized the ruling at the 2010 State of the Union.
• An ABC Washington Post poll found 80% opposed the ruling, while Gallup found 57% agreed campaign money is a form of speech.