Dissenting opinion

In a lengthy and impassioned dissent, Justice John Paul Stevens warned that the court’s ruling threatened “to undermine the integrity of elected institutions across the Nation.” He contended that the court had blatantly disregarded precedent and the principle of stare decisis, and he rejected the court’s rationale for considering the facial constitutionality of Section 441(b) as question-begging and ad hoc. According to Stevens, the majority had also misunderstood the state interests that Section 441(b) and Section 203 were designed to serve. In particular, its dismissal of the antidistortion interest overgeneralized Bellotti’s rejection of identity-based restrictions on political speech and ignored the ways in which corporate domination of political speech during an election could impoverish rather than enrich the marketplace of ideas. In addition, the court’s treatment of political corruption as equivalent to a quid pro quo was simplistic and naive, and its notion of corporate democracy greatly overestimated the powers of shareholders to vote and bring derivative suits against corporate officers. “The Court’s blinkered and aphoristic approach to the First Amendment,” he wrote, “will undoubtedly cripple the ability of ordinary citizens, Congress, and the States to adopt even limited measures to protect against corporate domination of the electoral process. Americans may be forgiven if they do not feel the Court has advanced the cause of self-government today.” Stevens’s opinion (which concurred with the majority’s ruling on the disclosure-and-identification requirements of the BCRA) was joined by Justices Stephen Breyer, Ruth Bader Ginsburg, and Sonia Sotomayor.

In SpeechNOW.org v. Federal Election Commission (2010), the U.S. Court of Appeals for the District of Columbia Circuit, citing the Supreme Court’s decision in Citizens United, struck down FECA-imposed limits on the amounts that individuals could give to organizations that engage in independent expenditures for the purpose of express advocacy but upheld FECA’s disclosure-and-identification requirements as applied to individual contributors to such groups. Although SpeechNOW appealed the disclosure-and-identification portion of the appeals court’s ruling, the Supreme Court declined to hear the case. One significant result of the SpeechNOW decision was the emergence of large ideologically driven “Super PACs” to which wealthy individuals could contribute without limit. The amount of spending by such groups during elections between 2010 and 2016 increased from $62 million to more than $1.1 billion.

In its endorsement of the BCRA’s disclosure-and-identification requirements, the Citizens United court expressed its faith that “with the advent of the Internet” those provisions would forestall the possiblity that corporate-funded political advertising would disempower shareholders or mislead or improperly influence the public. Citing Scalia’s opinion in McConnell, the court declared that, armed with such information,

shareholders can determine whether their corporation’s political speech advances the corporation’s interest in making profits, and citizens can see whether elected officials are “ ‘in the pocket’ of so-called moneyed interests.’ ”

Unfortunately, those envisioned protections were partly evaded, as some political nonprofit corporations that had been engaged in independent expenditures reregistered themselves with the Internal Revenue Service (IRS) as tax-exempt “social welfare” organizations, which were not required to disclose the identities of their donors. Another common strategy of such corporations was to retain their status under the tax code but to accept large donations from essentially sham social welfare organizations that had been created for the purpose of collecting and distributing anonymously donated money. More than $240 million of such “dark money” was spent in the 2012 election cycle, though the amount declined in subsequent years.