(Clinton, KY Jan. 21, 2012) - Citizens United is two years old today.

Two year olds are known for their propensity to do mischief, insisting on their own way, ignoring the instructions of their parents, throwing a temper tantrums that damage anything in their reach.

Based upon that criteria, Citizens United is a typical toddler.

After two years, the decision has turned the American political and electoral process on its ear. The decision overruled law preventing corporations from spending money directly on elections. Previous decisions and statutes made corporations and unions set up political action committees, PACs, to advocate for them. While PACs remain, super PACs which have unrestricted money limits now rule the airwaves. Super PACs exercise their 1st Amendment rights by going for and against candidates with no holds barred.

Corporate money hidden behind names like “Friends of America” can raise unlimited amounts of money and spend it supporting or opposing any candidate. Wealthy individuals can set up their own super PAC to support their chosen candidate.  As illustrated in the cheeky campaign of Comedy Central’s Stephen Colbert, setting up his own Super PAC – then turning it over to Jon Stewart to manage, the only brakes on big money is a rule banning cooperation and coordination between candidate and Super PAC. The candidate cannot demand the PAC do anything. As Stewart and Colbert have illustrated, it’s a wink/wink sort of ban. Serious presidential candidate Newt Gingrich couldn't tell a supporting PAC what to do with a short movie denounced for inaccuracies. But he could go on television and tell the world what he would tell the Super PAC to do - if he could tell them what to do. Wink. Wink.

Citizens United started out as a fairly innocuous baby. The case began when Citizens United, a right wing group with cash in the bank and a movie trashing Hillary Clinton during her 2007 run for president. Citizens United wanted to make the film available to a pay on demand cable network. But to do so would run the group afoul of existing election finance law. Citizens United asked for a declaratory judgment from a federal court on how to proceed within the law. The federal district court entered a judgment and the game was on. 

A majority of the US Supreme Court took notice and the case wound up in the highest court in the land. The case garnered not one, but two oral arguments. Court observers also began to pick up vibes that something big was about to be born.

Arguing for the Federal Election Commission was Solicitor General Elena Kagan (now known as Supreme Court Justice Elena Kagan). Arguing for Citizens United was Ted Olson, who served as solicitor general under President George W. Bush. Friends of the Court (called amicus curiae ) briefs were filed by counsel for Sen. Mitch McConnell supporting the position of Citizens United and counsel for Sen. John McCain supporting the government’s position.

Kentucky’s Senator McConnell’s name appears on a previous case challenging election finance law. Arizona’s Senator McCain co-sponsored the McCain Feingold Act, aka the Bipartisan Campaign Reform Act. The two men, both Republican, both conservatives, come to money in politics from opposite directions. In Citizens United, McConnell would see success beyond his wildest dreams.

Traditional appeals strive not to go out of a narrow interpretation of the case presented. Traditional appeals courts generally follow previous law and precedent, moving glacially toward change. Traditional appeals courts are loathe to overturn the legislative branch, bending and twisting into pretzel shapes to avoid finding the work of Congress unconstitutional.
Citizens United v. Federal Election Commission broke with tradition. The decision went beyond what Citizens United requested. The majority rejected arguments offered by the federal government .

American courts have recognized since 1877 that corporations have rights as persons under the 14th Amendment (equal protection clause). A line of cases beginning back in the 1950s recognized that corporations have free speech protections. The Supreme Court has also said that money is speech and limiting money is limiting speech.

Citizens United puts corporations, speech and money together in one package.

If there is any doubt of the effect of Citizens United on politics, one needs only watch the GOP presidential primary process. Candidates with wealthy friends have ads running on television and the internet. Supporters of Newt Gingrich are running a bobble head cartoon on the Internet featuring both President Obama and GOP Mitt Romney.

There is no doubt that as the campaigns progress, more and more corporate money will bypass giving directly to candidates. Limits on donations directly to campaigns still exist and disclosure is still the rule.

Citizens United is two years old today. Undisciplined, it will get rowdier as the years pass. Unless its parents, the American electorate, exercise their authority and put it in a well deserved time out.