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 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, 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 host Jesse 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. Nor does anyone but the Federal Election Commission really recognize a difference between outside money and direct campaign contributions. I still remember an exchange 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 after survey after survey 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 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.
