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In Citizens United, the Supreme Court held that corporations had the same right to make independent campaign expenditures that individuals had. This means corporations have the right to spend an unlimited amount of money promoting or opposing a candidate, so long as the expenditures are not coordinated. Not surprisingly, we have seen an explosion in independent expenditures since that decision. Comparing 2010 to the last off-year election, spending is up more than 460 percent.42

FIGURE 14

The Court reached its conclusion not because it held (in this case at least) that corporations were “persons,” and, for that reason, entitled to First Amendment rights. Instead, the opinion hung upon the limits of the First Amendment. The question, as the Court addressed it, was whether Congress had the power to limit this kind of political speech.43 The First Amendment says that Congress “shall make no law… abridging the freedom of speech.” It doesn’t say “… the freedom of speech of persons.” As the Court interpreted that right, it was about what Congress could and couldn’t do, not about who got the benefit of what Congress couldn’t do. And Congress, the Court held, had no power to limit this kind of political speech.

There is an important kernel of truth in the Supreme Court’s opinion. Congress shouldn’t have the power to silence or burden any political speech based upon who or what is uttering it. Whether the speech is from a person, or a corporation, or a dolphin, should be irrelevant: Congress should not be in the business of balancing or silencing speech of any kind on the basis of some theory about which speech is to be preferred.44

And thus, in my view, the corporate speech actually at issue in the case—a video about Hillary Clinton, produced by a nonprofit political corporation—should have been free of regulation by the government. Citizens United, Inc., should, in my view, have had the liberty to spend whatever corporate funds it had to advance its own quirky view about why Clinton should not have been president. In its result, then, in the precise context of the facts of the case, the decision was, in my view, correct.

Likewise, in my view, was the Court correct in holding that Congress shouldn’t have the power to suppress speech for the purpose of “equalizing” speech. That was the theory behind Austin v. Michigan (1990), the case explicitly overruled in Citizens United. Austin had held that Michigan could ban corporations from using treasury funds to support or oppose a candidate, finding that such funds “can unfairly influence elections.”45 That holding had been read to support the idea that the category of corruption included both quid pro quo corruption and what we could call inequality corruption.

But to call inequality corruption is just to create confusion.46 Inequality in speech may be corruption. But not necessarily. If, for example, Michigan had banned political organizing by unions, arguing that unions’ power to turn out votes was “unequal” to the power of other interest groups in the state, that inequality would have nothing to do with corruption, at least in a system intended to be dependent upon votes. Regulating it would be improper. The aim of campaign finance regulation should not be, therefore, in my view at least, “to level the playing field among interests that vie for support and attention.”47 Its only aim should be to end corruption.

The Court was therefore right, in my view, to reject the “equality” conception of corruption. But it was wrong to imply the only relevant conceptions of corruption are “equality only” and “quid pro quo” corruption. Justice Kennedy’s opinion made it sound as if the only corruption that Congress could remedy, at least through regulations on political speech, was type 1, quid pro quo, corruption. Or, again, that venal corruption is the only legitimate target of speech-restricting regulation. Systematic corruption is not.

For an originalist, this is bizarre. As Zephyr Teachout’s and J. J. Wallis’s work makes