The Hidden Legacy of Citizens United Is an Attack on Your Freedom to Associate

You have been told a story about Citizens United v. FEC dozens of times by now. It goes like this: the Supreme Court tore down sensible campaign finance rules, let billionaires and giant corporations pour unlimited cash into elections, and sold American democracy to the highest bidder. The decision gets trotted out every election season as the root of all that ails our politics, a four-letter word in progressive circles, a mistake that must be overturned by constitutional amendment or judicial fiat. Like most simple morality tales, this one collapses under even a modest amount of scrutiny.

The actual holding of the case was a straightforward First Amendment proposition. A small nonprofit called Citizens United produced a documentary critical of Hillary Clinton and wanted to make it available on a video-on-demand service during the run-up to the 2008 primaries. A federal law, the Bipartisan Campaign Reform Act, made it a crime for any corporation or union to spend money on an "electioneering communication" that mentioned a candidate within thirty days of a primary or sixty days of a general election. The Federal Election Commission told the group it could not show the film. The Supreme Court declared that law unconstitutional. Writing for the majority, Justice Anthony Kennedy framed the issue with elegant simplicity: if the First Amendment means anything at all, it means Congress cannot throw citizens in prison for banding together to speak about politics. He used the phrase "associations of citizens" deliberately, because that is exactly what a corporation is under the law, a device by which individuals pool their resources and combine their voices.

The money apocalypse never arrived. That is the first thing you should know. Despite all the breathless warnings about corporate treasuries flooding the airwaves, the data gathered by the same campaign-finance watchdog groups that detest the ruling tells an entirely different story. Most of the outside spending in federal elections comes from individuals, ideological groups, and party committees, not from the balance sheets of Fortune 500 companies. Corporate boards tend to be risk-averse. Spending shareholder money on political advocacy invites lawsuits, consumer boycotts, and nasty internal fights. So most of them stay on the sidelines. What Citizens United actually achieved was a more level playing field. It allowed smaller, citizen-funded organizations to challenge the media-political establishment that already had a megaphone. To borrow a framing from Thomas Sowell, the rift between the reformers' intentions and the results they got is wide enough to swallow an entire election cycle.

But the story I want to tell you is about a different consequence of the ruling, one that gets almost no attention and poses a threat far more enduring than a few extra attack ads in October. The ferocious backlash to the decision spawned not just angry newspaper columns and a handful of failed constitutional amendments. It launched a sustained intellectual campaign against the very notion that associations of citizens have constitutional rights at all. The bumper sticker line became "Corporations are not people, and money is not speech." You hear it from senators on the campaign trail, from cable news panels, from the editorial board of the New York Times. It sounds righteous and obvious. It is also, once you pull the thread, a prescription for gutting the First Amendment entirely.

The logic that drove the post-Citizens United movement goes like this: legal entities are not natural persons, and therefore the Constitution should not protect them. The problem is that "legal entity" does not just mean ExxonMobil and Amazon. It means every church in your town, organized as a nonprofit corporation under state law. It means the NAACP, the ACLU, the NRA, the Sierra Club. It means the little bakery you run as an LLC to protect your family from personal bankruptcy. It means the union that represents workers at the plant. Every one of these groups is a fictitious legal person, an association of individuals that the law treats as a unit for certain purposes. If constitutional rights belong only to "natural persons," as the activists insist, then your church has no First Amendment right to speak on a moral issue, no Fourth Amendment protection against a government fishing expedition through its records, no Fifth Amendment right to be secure in its property. Want the IRS to audit sermons for political content the current administration finds disagreeable? On what ground would a church object, if it has no rights? Want the EPA to barge into your small business's office without a warrant? Well, the business is just a legal fiction, nothing more.

This is not a paranoid hypothetical. The movement's explicit goal is captured in a proposed amendment to the Constitution introduced in Congress several times under titles like the "We the People Amendment." Its text declares that the rights protected by the Constitution are the rights of natural persons only. Not just the right to spend money on politics. All rights. Every protection that stands between a free citizen and an overbearing government would vanish the moment you join with your neighbors to accomplish something together. The amendment's advocates do not hide the ball. They believe collective action through institutions is inherently suspect, that power is always and everywhere a threat, and that only the solitary individual-unaffiliated, unincorporated, and easily managed-should enjoy the full shield of the Bill of Rights. It is a vision so alien to the American tradition that it would have bewildered James Madison.

The Founding Tradition of Association

Madison spent a great deal of time worrying about factions, as anyone who has read Federalist No. 10 knows. But his cure was not to outlaw private associations or to strip them of legal standing. It was to design a constitutional republic large enough and diverse enough that no single faction could dominate the rest. He understood that liberty is almost never exercised by people standing alone in a field. It is exercised through groups: through churches and political clubs, through newspapers and trade associations, through the societies of correspondence that helped launch the Revolution itself. The founders did not see these groups as threats to be extinguished. They saw them as the natural outgrowth of a free people, and they wrote the First Amendment's protections of speech, press, assembly, and petition with exactly those associations in mind.

The liberal icon Friedrich Hayek, though no American founder, saw the same truth from a different angle. His great insight was the knowledge problem: no central authority, however wise or well-intentioned, can possibly gather the dispersed information that millions of individuals and associations use to make decisions every day. This applies as much to speech as it does to economics. No panel of campaign-finance experts can know what your church needs to say after a sermon, what your small business association believes about a local tax proposal, or what your advocacy group must publish to explain a foreign policy crisis. The knowledge lives with you, in your community, in your institution. To hand a government agency the power to decide when and how your group can speak is to throw away that knowledge and to trust that the people in charge know better. They do not. They never have.

Justice Antonin Scalia, the Court's most forceful modern voice for originalism, made this point repeatedly in his public speeches and in his opinions. He noted that the First Amendment does not say "the freedom of speech of individuals." It says, without qualification, "Congress shall make no law … abridging the freedom of speech." The text erects a barrier against the government, not a menu of approved speakers. Scalia also tied the matter directly to the right of association, which the Court has long recognized as a necessary companion to the listed rights. You cannot have a free press without the right to pool capital and hire reporters. You cannot have free exercise of religion without the right to incorporate a church and hold property. You cannot petition the government for redress of grievances without the right to form a committee that collects signatures and hires a lawyer. All of these activities run through associations, and all of them are impossible if those associations have no constitutional standing.

The deeper damage of the anti-Citizens United crusade is the cultural permission slip it has handed out. It has made it respectable to talk about stripping rights from the groups people join, as if those groups were alien parasites on the body politic. The conversation in the mainstream press and on elite campuses treats it as obvious that "corporate personhood" is a scandal that must be reversed. Rarely does anyone pause to explain which groups would lose their protections, or what a world without protected associations would actually look like. The real impact of the decision, then, is the steady drumbeat of a terrible idea, repeated so often that millions of Americans nod along without thinking through the consequences.

The Seen and the Unseen

The economist Henry Hazlitt taught us to look for what does not happen because of a policy. The visible effect of the Citizens United backlash is a handful of failed constitutional amendments, some new disclosure rules that probably pass muster anyway, and a lot of indignant fundraising emails. The invisible effect is a slow, corrosive chill on American associational life. It is the small community group that hesitates to incorporate because the legal climate has become hostile. It is the church that thinks twice before issuing a statement on a contested moral question because its lawyers warn that "corporations don't have free speech rights" could be the next battle. It is the gradual replacement of the vibrant, Tocquevillian network of civic organizations that once defined American exceptionalism with a hollowed-out public square where only isolated individuals and government-licensed speakers are allowed to participate.

This is the long game of the reformers, whether they admit it or not. They will not win by repealing the First Amendment overnight. They will win by convincing enough people that your rights are not truly yours, that they are a revocable grant from the state, contingent on your willingness to stand alone and unbundled from the institutions that give your voice weight. Every time a well-meaning pundit nods along with "corporations aren't people," the logic sinks a little deeper into the soil of our political culture. And one day, when the courts are restocked and the public has been sufficiently softened up, that logic will be deployed against a church, a nonprofit, or a small business, and the constitutional defenses that once stood strong will have been hollowed out from the inside.

The framers gave us a charter that limits government, not people, and certainly not the institutions people freely create. That principle is what Citizens United vindicated, and it remains the right reading of the supreme law of the land. The fight now is not about a few more campaign ads. It is about whether Americans may continue to speak through the associations they build or whether they must beg permission from a regulator who decides which groups are legitimate and which are not. The day they take away an organization's right to speak is the day they take away your right to be heard. And on that day, no amount of campaign-finance reform will buy back the liberty that was lost. Do not be fooled by the slogans. Defend the speech of every association, and you defend your own. Surrender it to the planners, and you will learn, too late, that the quiet they impose on others is the quiet they will one day impose on you.