Coordinated Expenditures and Corporate Money: Exploring the Free Speech Fallacy of Contemporary Campaign Finance Law

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From Ancient Greece to the modern day United States, money in politics has always been controversial. In a democratic republic like the U.S., “money in politics” often refers to money spent in the electoral process. Campaign finance legislation is complicated, as it must tow the line between two ideals: preserving free speech and preventing political corruption. This complexity has been playing out dramatically in the contemporary American judicial system, as landmark cases like Citizens United v. FEC, which struck down limits on independent corporate campaign spending, have recently overturned key campaign finance precedent in the name of protecting free speech. This trend has continued into 2026, when National Republican Senatorial Committee v. Federal Election Commission (NRSC) held that limits on coordinated campaign expenditures are unconstitutional. Viewing NRSC alongside Citizens United elucidates how the Court’s views on campaign finance have dramatically shifted, and reveals a disturbing contrast between the reasoning and the effects of these decisions: while the Court presents itself as preserving First Amendment principles through skepticism about what campaign finance limitations theoretically add to existing legal frameworks, they ignore the impact that these limitations, which already exist, have in the real world. In doing so, they disrupt the very principles they seek to protect.

Understanding the controversies of Citizens United and NRSC involves understanding historical campaign finance jurisprudence. Modern jurisprudence began after the 1972 Federal Election Campaign Act (FECA), which defined restrictions on both campaign contributions (giving money directly to an entity) and expenditures (spending money for election advocacy), and was expanded by Congress in 2002 with the Bipartisan Campaign Reform Act (BCRA). Jurisprudence around these laws began with Buckley v. Valeo, where the court established that the First Amendment is implicated in limitations on campaign financing of repression of political expression. However, Buckley separated out how the Court should handle contributions versus expenditures, subjecting expenditure limits to strict scrutiny, and contribution limits to the less demanding “closely drawn” test, in which regulation must be proportionate, necessary, and narrowly tailored to be constitutional. Along this framework, Buckley upheld limits on individual contributions, but removed limits on independent expenditures by campaigns, individuals, groups, and candidates.

For decades, Buckley’s framework steered other campaign finance decisions. Using strict scrutiny as prescribed in Buckley, Austin v. Michigan Chamber of Commerce ruled that a Michigan campaign finance law prohibiting corporations from using their treasury funds for independent expenditures did not violate the First Amendment. The Court argued that the government had a compelling interest in preventing corruption and democratic distortion caused by corporate spending, and that the law allowed other avenues for “corporate political speech.” Using the closely drawn test, the Court ruled in FEC v. Colorado Republican Federal Campaign Committee (Colorado II) that it was constitutional to limit a political party’s coordinated campaign expenditures to mitigate loopholes in direct contribution limits, functionally treating coordinated campaign expenditures as loopholes to contribution, rather than traditional expenditures.

Citizens United challenged these decades of stable precedent by questioning the constitutionality of limits on independent corporate expenditures. The Court’s opinion in Citizens United applied strict scrutiny to argue that independent corporate expenditure limits are unconstitutional because they violate First Amendment protections of corporate political expression. Strict scrutiny requires that legislation meets two criteria: the government must have a “compelling interest,” and the legislation must be “narrowly tailored” to that interest. The majority in Citizens United rejected three potential interests: “antidistortion,” anti-corruption, and protecting dissenting shareholders. The antidistortion interest—the idea that corporations can have a corrosive effect on democracy contrary to the public’s support for the corporation’s political ideas—was rejected as discriminatory against the political speech of groups based on wealth. Further, the majority held that the interest was too narrow for its own argument, as corporations influence the government in other ways. As for anticorruption, the Court argued that the interest applies only to quid pro quo corruption, which does not include corporate campaign expenditures. Protecting dissenting shareholders was deemed irrelevant based on the idea that disagreement between shareholders and corporations should be resolved by corporate democracy. Thus, Citizens United overturned Austin to, in the majority’s view, return to principles in precedent like First National Bank of Boston v. Belotti, which ruled that the government cannot repress political speech on the basis of corporate identity. 

Justice Stevens’ dissent on the principal holding of the Citizens United was cutting. The dissent dissected each of the potential interests abandoned by the majority, arguing that they misunderstood both precedent and the interests themselves. Starting with anticorruption, the dissent argued that cases like Colorado II had viewed corruption outside of quid pro quo relationships as compelling—corruption is a spectrum that can't be ignored just because “bribery may be the paradigm case.” Stevens then argued that the majority misunderstood that the “antidistortion interest” is in and of itself an anticorruption interest tied to the specifics of corporations, which are not actually people — they have special characteristics, like perpetual life and unique legal and economic statuses, which deviate from the First Amendment’s focus on individual self-expression. The dissent took a practical approach to corporations’s contributions to the “marketplace of ideas,” arguing that they drown out non-corporate voices due to outsized influence. The dissent also argued that in its obsession with the idea that there is “no such thing as too much speech,” the majority ignored that people only have limited time to consume that speech, which can be overwhelmed by corporate influence. Austin thus facilitated breathing room in the marketplace of ideas. In the dissent’s eyes, the shareholder protection interest reinforced antidistortion, as shareholders effectively foot the bill for corporations, often in contrast to their own beliefs. Apart from specific interests, the dissent also had fundamental problems with the framing of the case, arguing that the section of the BCRA at stake was not a true ban on corporate speech, but merely a restriction on a very specific practice of problematic corporate speech. 

Underlying the details of this debate are completely different approaches to understanding the limit on independent corporate expenditures: the majority works from a lens of what the limitation theoretically adds to the legal framework of campaign finance, while the dissent uses a lens of the protections that the limitations have already added. 

NRSC exhibited a similar paradigm when ruling whether coordinated expenditures could be treated as contributions. The majority argued for a version of the closely drawn test for determining whether a regulation is constitutional. The majority held that the government’s interest in preventing corruption in the form of circumventing individual contribution limits was legitimate, but also that the limit here was unnecessary, disproportionate, and not narrowly tailored. They argued that existing laws restricted earmarking funds for candidates and required financial disclosure, both of which prevented circumvention without being overly restrictive. 

In her dissent, Justice Kagan defended the limit. Key to the dissent was a discussion of joint funding committees, which the majority failed to consider. Joint funding committees allow candidates to join with the national and state branches of their party for fundraising purposes, granting an ability to exceed standard limits. Funds pooled in these committees are funneled to the national party, which, while not required to use them on the candidate who helped raise them, is incentivized to use funds on successful and popular candidates. Kagan argued that through this pooling, coordinated expenditures circumvent limits that earmarking and disclosure try to impose. 

Again, the majority focused on the theoretical implications of the limitation, while the dissent focused on what the limitation had actually done. For the majority, the limitation theoretically added an extra safeguard against something that other laws already protected against, at the detriment of adding extra restrictions on free speech. For the dissent, the limitation necessarily covered an issue area that wasn’t covered by existing laws. 

Ironically, in ignoring reality to construct theoretical anti–free speech apocalypses, the rulings in Citizens United and NRSC helped create the very reality they seem to fear. The message at the end of Stevens’ dissent in Citizens United is striking — “While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.” Rolling back limits on corporate money in politics, rather than increasing free speech rights of political expression, limits how the rest of society participates in democracy. Stevens has largely been proven right, as there have been massive increases in political spending from outside groups in the wake of the ruling, which helped invent the now-everpresent “super PACs” that spend billions of dollars in federal elections, drowning out the voices of individuals. NRSC struck down another set of guardrails, allowing more influence on individual candidates by wealthy donors and making political parties more susceptible to influence from the ultrawealthy. In privileging the political expression rights of the select few, Citizens United and NRSC diluted the speech of the many, diminishing the function of democracy in the process.

Zeke Tesler is a sophomore from NYC studying English and International and Public Affairs. He is a staff blog writer for the Brown Undergraduate Law Review and can be contacted at zeke_tesler@brown.edu.

Alex Goldfarb is a junior at Brown University concentrating in Applied Mathematics - Economics and Political Science. He is a staff editor for the Brown Undergraduate Law Review and can be contacted at alexander_goldfarb@brown.edu.

Wesley Horn is a junior at Brown University concentrating in History and Economics. He is a staff editor for the Brown Undergraduate Law Review and can be contacted at wesley_horn@brown.edu.