Citizens United is the extreme result of a focused political effort in the past two or three decades to transform the First Amendment into a tool for corporations to avoid regulation and oversight by the American people. Before 1976, there was no such thing as protected “commercial speech” under the First Amendment. For the first two centuries of the American republic, corporations did not have First Amendment rights to limit the reach of democratically enacted regulations. And states and Congress could regulate or prevent corporate contributions and expenditures in elections.

In the mid-1970s, the Supreme Court began to develop an unprecedented “commercial speech” doctrine. First, the Court invalidated a state prohibition on abortion advertising in Bigelow v. Virginia.[1] As a result, the Court decided that “the notion of unprotected ‘commercial speech’ all but passed from the scene,” and invalidated a state law regulating pharmaceutical price advertising.[2] Justice Rehnquist dissented, stating that “nothing in the United States Constitution . . . requires the Virginia Legislature to hew to the teachings of Adam Smith. . .”[3]

Following the decision in Virginia Board of Pharmacy v. Virginia Citizens Consumer Council, the corporations and supporters of increased corporate power began aggressively to push for the creation of corporate rights. Lewis Powell, a private attorney advising the Chamber of Commerce advocated such a strategy, and, after his appointment to the Supreme Court by President Nixon, wrote the decision in First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978).[4] In Bellotti, several large corporations challenged a Massachusetts prohibition on corporate expenditures to influence ballot questions, except questions “materially affecting any of the property, business or assets of the corporation.”[5] Mindful of Virginia Pharmacy and of the Court’s holding in Buckley v. Valeo[6] that equated spending money in elections with speech, the Massachusetts Supreme Judicial Court nevertheless rejected the challenge, making the uncontroversial observation that “a corporation does not have the same First Amendment rights to free speech as those of a natural person. . . .”[7]

In an opinion authored by the now-Justice Powell, the Court reversed and struck down the law limiting corporate expenditures in state referendum elections.

Justice Rehnquist disagreed:

A State grants to a business corporation the blessings of potentially perpetual life and limited liability to enhance its efficiency as an economic entity. It might reasonably be concluded that those properties, so beneficial in the economic sphere, pose special dangers in the political sphere.[8]

The Court had begun to modestly retreat from the holding in Bellotti, deciding in Austin and McConnell and other cases that limits on corporate expenditures in elections are constitutional. With Citizens United, however, the illegitimate corporate rights notion has returned with a vengeance.

[1] Bigelow v. Virginia, 421 U.S. 809 (1975).
[2] Virginia Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 759 (1976).
[3] Id. at 784.
[4] The background of the 1971 Lewis Powell memorandum and the text of the memorandum itself are available at
[5] First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765 (1978).
[6] Buckley v. Valeo, 424 U.S. 1, 14 (1976).
[7] First Nat’l Bank of Boston v. Attorney General, 359 N.E. 2d 1262, 1270 (1977).
[8] Id. at 825-26.