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ELON MUSK IS DEMOLISHING THE RATIONALE FOR CITIZENS UNITED  
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Matt Ford
March 24, 2025
The New Republic
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_ The Supreme Court said in 2010 that the decision wouldn’t damage
Americans’ faith in democracy. Whoops. _

Donald Trump, accompanied by Elon Musk stage an impromptu commercial
for Tesla on the South Lawn of the White House. , Andrew Harnik/Getty
Images

 

Fifteen years ago, Justice Anthony Kennedy made a prediction. Writing
for the majority in _Citizens United v. Federal Elections Commission_,
in which the court struck down key guardrails against corporate
spending in American elections, Kennedy rejected the allegation that
the court’s ruling would have deleterious effects on how Americans
perceived their republic.

 
“The appearance of influence or access, furthermore, will not cause
the electorate to lose faith in our democracy,” he wrote.
Kennedy’s reasoning was stilted and formulaic: Because corporations
were “willing to spend money to try to persuade voters,” he
argued, that dynamic “presupposes that the people have the ultimate
influence over elected officials.”

The last two months have proven him disastrously incorrect. Elon Musk,
a South African billionaire who is considered to be the world’s
wealthiest man, spent $288 million
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to reelect President Donald Trump last year. In return for his
contributions, he has been given more power over the federal
government than any other private individual since the founding.

With that power, Musk and his henchmen have dismantled entire federal
agencies and directed the dismissals of thousands of civil servants.
He has gained access to private data on millions of Americans from the
Social Security Administration, the IRS, and other bedrock components
of the federal government. He has used the Treasury’s payment system
to cut off funds to congressionally authorized programs and disfavored
recipients of federal funds.

The entire federal government now seems to bend to one man’s
personal interests. Trump personally took part in a private car show
for Tesla
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Musk’s ailing electric car company, on the White House lawn.
Attorney General Pam Bondi recently announced that the Justice
Department would treat vandalism of Tesla cars and dealerships as
“domestic terrorism.” Secretary of Commerce Howard Lutnick told
Fox News viewers this month that Tesla’s stock price slide was a
historic buying opportunity and urged them to take part in it.

“I think if you want to learn something on this show tonight, buy
Tesla,” he told
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Watters. “It’s unbelievable that this guy’s stock is this cheap.
It’ll never be this cheap again. I mean, who wouldn’t invest in
Elon Musk? You gotta be kidding me.” Abraham Lincoln’s dream of
government by the people, of the people, and for the people has been
replaced with government by, for, and of one very specific person.

This is the world that the Supreme Court’s campaign finance
deregulation efforts have created. All modern campaign finance cases
begin with _Buckley v. Valeo,_ where the justices struck down key
portions of the Federal Election Campaign Act of 1971. That law
imposed various limits on campaign donations and expenditures; the
_Buckley_ court struck down some of these restrictions and upheld
others.

The justices at the time reasoned, for example, that capping the
amount of spending that campaigns could make during an election was an
unnecessary violation of the First Amendment. At the same time, the
_Buckley_ court upheld other restrictions on campaign contributions
and independent expenditures by holding that the government had a
“substantial” interest in preventing the “appearance or reality
of corruption” in electoral politics.

In 2002, Congress amended the 1971 act by passing the Bipartisan
Campaign Reform Act, also known as BCRA—or “McCain-Feingold”
after the two senators who championed it. Among BCRA’s reforms were
limits on how corporations, unions, and other non-nonprofit
organizations could spend money to influence elections. While those
groups could still generally spend money on “issue ads,” the 2002
law barred them from making independent expenditures to support
specific candidates.

The Supreme Court overturned those restrictions in _Citizens United_
in a 5–4 ruling led by Kennedy. In his majority opinion, Kennedy saw
the law’s restrictions as an unacceptable burden on constitutionally
protected speech. Nobody really disagreed that the laws burdened
political speech; the question was whether the government had a strong
enough interest to do so. Citing _Buckley_ and subsequent cases, the
federal government had argued that the need to prevent the appearance
or reality of corruption was enough to justify the limits.

Kennedy disagreed and limited _Buckley_’s reasoning to more explicit
forms of corruption. “When _Buckley_ identified a sufficiently
important governmental interest in preventing corruption or the
appearance of corruption, that interest was limited to quid pro quo
corruption,” he wrote. “The fact that speakers may have influence
over or access to elected officials does not mean that these officials
are corrupt.”

Though Kennedy did not outright dismiss the _Buckley_ court’s
language on the “appearance” of corruption, his reasoning all but
negated it as a factor in the court’s analysis. Kennedy argued that
“favoritism and influence” were simply an inevitable feature of
electoral politics. “Democracy is premised on responsiveness,” he
wrote, quoting from an earlier campaign finance decision he had
written.

“It is in the nature of an elected representative to favor certain
policies, and, by necessary corollary, to favor the voters and
contributors who support those policies,” Kennedy explained. “It
is well understood that a substantial and legitimate reason, if not
the only reason, to cast a vote for, or to make a contribution to, one
candidate over another is that the candidate will respond by producing
those political outcomes the supporter favors.”

This was a stark and somewhat blasphemous vision for the American
republic from the philosopher-king of Salzburg. The Constitution’s
Framers often held that a republican society’s survival hinged on
the virtue of its citizenry and their ability to balance their
personal self-interest with the common good. Not so in Kennedy’s
America. Higher aspirations are nowhere to be found; all electoral
relationships between representative and citizen are purely
transactional.

This is the point where Kennedy made his prediction about the
ruling’s impact. He appeared to recognize, if only subconsciously,
that his vision was at odds with two centuries of American civic
traditions. “The appearance of influence or access, furthermore,
will not cause the electorate to lose faith in our democracy,” he
wrote. “By definition, an independent expenditure is political
speech presented to the electorate that is not coordinated with a
candidate. The fact that a corporation, or any other speaker, is
willing to spend money to try to persuade voters presupposes that the
people have the ultimate influence over elected officials.”

This is not how things work in practice. Fifteen years after _Citizens
United_, candidates have found plenty of ways to coordinate their
messaging with outside spenders without violating federal law; it is
generally acknowledged that enforcement of the remaining campaign
finance rules for them is virtually nonexistent
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Nor does anyone but the Federal Election Commission really recognize a
difference between outside money and direct campaign contributions. I
still remember an exchange
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between then-candidate Jeb Bush and CNN anchor Jake Tapper during the
2015 presidential primaries where Tapper said Bush had raised “$100
million” at that point. That money had actually been raised by
Bush-friendly superPACs, but it was a distinction without a difference
for both moderator and candidate.

The court’s liberal members, for their part, were unpersuaded by
Kennedy’s reasoning. Justice John Paul Stevens, writing for the
dissenters, criticized the conservative majority for its dangerous
nonchalance toward the corrosive effects of corruption. “The
majority declares by fiat that the appearance of undue influence by
high-spending corporations ‘will not cause the electorate to lose
faith in our democracy,’” he noted. “The electorate itself has
consistently indicated otherwise, both in opinion polls and in the
laws its representatives have passed, and our colleagues have no basis
for elevating their own optimism into a tenet of constitutional
law.”

Musk is not technically a corporation, of course, and the legal
mechanisms that he used to influence the 2024 election would come from
follow-up rulings after _Citizens United._ But its civic reasoning
still holds true for the present crisis. Stevens, for example, warned
that corporate interests did not operate like normal political actors.
“Corporations, as a class, tend to be more attuned to the
complexities of the legislative process and more directly affected by
tax and appropriations measures that receive little public scrutiny;
they also have vastly more money with which to try to buy access and
votes,” he explained.

He also noted that they were legally obligated to act in ways that
ordinary citizens would not. “Business corporations must engage the
political process in instrumental terms if they are to maximize
shareholder value,” Steven wrote. “The unparalleled resources,
professional lobbyists, and single-minded focus they bring to this
effort, I believed, make quid pro quo corruption and its appearance
inherently more likely when they (or their conduits or trade groups)
spend unrestricted sums on elections.”

Stevens’s dissent was praised at the time, but it carries even
greater weight with the benefit of hindsight. He described Kennedy’s
majority opinion as “a rejection of the common sense of the American
people, who have recognized a need to prevent corporations from
undermining self-government since the founding, and who have fought
against the distinctive corrupting potential of corporate
electioneering since the days of Theodore Roosevelt.”

It is unsurprising now that survey
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after survey
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after survey
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shows that public faith in democratic institutions is at a record low.
Not all of the decline can be traced directly to campaign finance
issues, of course, but a great deal of it can. Trump capitalized on
that disaffection in his initial campaigns for office: He criticized
_Citizens United_ and suggested that his wealth would insulate him
from the corrupting influence of campaign donations. “When you give,
[elected officials] do whatever you want,” he claimed
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during one of the 2015 primary debates. He appears to have taken that
reasoning to heart after Musk’s own contributions.

At the end of his dissent, Stevens also offered up a prediction of his
own. “The court’s ruling threatens to undermine the integrity of
elected institutions across the nation,” he wrote. “The path it
has taken to reach its outcome will, I fear, do damage to this
institution.” Musk and Trump are now calling for the removal of
judges who disagree with them and defying federal court orders. Rarely
has a prophecy from dissenting justice been proven so obviously
correct.

Matt Ford [[link removed]]

Matt Ford is a staff writer at _The New Republic_

* Citizens United; US Elections; Campaign Finance; Democracy;
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