- Uniting Citizens after Citizens United:Cities, Neoliberalism, and Democracy
The Supreme Court’s five-to-four decision in Citizens United v. Federal Election Commission overturned provisions of the 2002 Bipartisan Campaign Reform Act (commonly known as McCain-Feingold) that had barred corporations from spending money on independent (i.e., not formally affiliated with a candidate) political communication.1 Justice Anthony Kennedy wrote for a five-to-four majority that the Federal Election Commission (FEC) could not constitutionally allow individuals to speak through paid political advocacy while prohibiting corporations from doing so. Critics of the decision, beginning with the dissenting justices and including President Barack Obama, have accused the court of partisanship and encouraging corporations to dominate electoral politics. The phrase “post–Citizens United” has come to signify a new, money-driven political order in which the voices and influence of ordinary citizens are suppressed. In this article, I argue that the implications of the decision and therefore the changes needed to create a more democratic society have been widely misunderstood.
A more productive understanding of Citizens United must view the case in its entirety as a sociolegal event—including winning, losing, and unmade arguments and the premises underlying them. All of these elements reflect the assumptions held by the parties about power, which I define, after professor of geography Ruth Wilson Gilmore, in terms of “categories of social actors and their capacity to realize their own freedom.”2 Critical legal scholars have argued that the law [End Page 5] is perpetually subjected to normative judgments and “strategic recategorization” of legitimate actors and their capacities to act. In turn, arguments in the judicial arena have an expressive effect, reifying understandings of political capacity and citizenship, becoming “constitutive of group and individual identities and values,” and defining legitimate forms of political action.3 Citizens United generated particularly intense reaction because the majority affirmed and extended the legal doctrine of corporate personhood into the realm of free speech, an instance of strategic categorization in terms of who may speak that the dissenting justices and much of the public found deeply troubling.
However, the FEC’s legal arguments, the dissenting opinion, and many of the most prominent critiques of the decision substantively agree with the majority about how legitimate speakers speak—by spending money to purchase media time. This article begins with a critical evaluation of arguments made on behalf of the FEC in Citizens United and by critics of the decision afterward, exposing the narrowness of the government’s argument and of political remedies for the problem of money in politics that that argument inspired. These liberal critiques and imagined solutions are embedded within a set of neoliberal assumptions. Neoliberalism in this context is a broad political-economic and ideological tendency that valorizes the individual right of property as the core of freedom.4 In this context, a neoliberal viewpoint defines political participation as private and rejects a structural critique of wealth in politics or, indeed, any conception of public political culture distinct from private spending. Although these arguments have since constituted the nominal left pole of discussions and strategy to counter the influence of corporate spending, Citizens United’s critics have far more in common with their antagonists than they acknowledge and defend democracy far less than they claim.
My critique of Citizens United seeks to engage with deeper issues of power in contemporary political culture by considering the differences between businesses and cities as categories of corporations. Citizens United recategorized business corporations as First Amendment speakers and, by extension, as legitimate political subjects; more democratic and inclusive politics require a similar recategorization of cities and particularly that social movements embrace the powers that cities represent as governments and as public corporations based on association as objects of struggle. I present a brief comparative history of municipal and private corporations to demonstrate that the former have frequently served as instruments of democratic politics, supporting what Thomas Bender calls “thinking oneself into politics.”5 City powers have been restrained and redefined over the course of the twentieth century precisely to curb the threats that strong cities have posed to private interests. I further argue that legal and political arguments about...