They say that landmark cases are not landmarks unless they create some controversy. After all, they not only answer a pivotal question in the law, but also affect a huge load of subsequent cases in the future. Brown v. Board, Roe v. Wade, and DC v. Heller are all cases that seem to fit this bill. But one case seems to stand out of this pack. The case of Bush v. Gore. In some respects it is a case that can be considered a landmark: it stopped the 2000 Florida recount, handed the presidency to George Bush, and, most of all, generated a lot of controversy. But in other respects it could be considered as a non-landmark: it was largely technically, its application was narrow, and it is a case that will have virtually no legal bearing on any future cases. Indeed, Bush v. Gore is such an abnormal creature that on its ten year anniversary, Jeffrey Toobin took the opportunity to lambaste it once again, calling the so called the court’s five membered “judicial conservatives” as veiled “judicial activists” because they did not practice “judicial restraint” and defer to the legislative branches of government, when they should have (par. 5).
Fast forward a just month later and the Supreme Court is in the firing line again. This time however, the criticism of the high court are not just similar to Bush v. Gore, they go a step further. On top of the criticisms of the court not being deferential to Congress and striking down a provision of the Bipartisan Campaign Reform Act (BCRA), the court was criticized for largely overruling two prior precedents and inviting the corporations to dominate political elections—something that Bush v. Gore did not even come close to doing. However charged the rhetoric may be though, when one looks at the data, it has become clear that the election process after Citizens United has largely remained unchanged.
To understand the effect of Citizens United one must look at the the pre-Citizens United world. A world where although corporations could participate in elections, they were legally limited from doing so. Corporations who chose to participate could only do so through Political Action Committees (PAC) where only individual executives and shareholders of a particular corporation could contribute. Those who chose to contribute to a PAC where only allowed to contribute 5000 dollars a year. Most importantly, contributions to PACs from corporate treasuries where strictly prohibited. After Citizens United, this prohibition was lifted. Corporations after January of 2010 can contribute directly to PACs directly from their treasuries.
The result of allowing corporations to spend from their treasuries has led to the concern that it can lead to the distortion in the marketplace of ideas. Daniel Winick of the Yale Law Journal is a subscriber to this view. He claims that the public cannot evaluate ideas rationally. Winick writes, “speech distorts the public sphere if its effect on public discourse surpasses its true level of public...