'Citizens United 2.0': GOP Pushing a Pair of Supreme Court Cases That Would Further Legalize Bribery
Journalist David Sirota writes that the cases, each firmly backed by the Trump administration, are aimed at "incinerating any remaining deterrents to pay-to-play corruption."
Fifteen years after the Citizens United ruling opened the gates for corporate money to flow into US elections, the Supreme Court will soon hear another pair of cases that journalist David Sirota says are aimed at "eliminating the last restrictions on campaign donations and obstructing law enforcement’s efforts to halt bribery."
One of the cases, National Republican Senatorial Committee v. Federal Elections Commission (FEC), was launched in 2022 by then-Ohio Senate candidate JD Vance (R-Ohio), now the vice president of theUnited States, and several other Republicans, who argued that limits on coordinated spending violated the First Amendment.
The limits in question, which were imposed after the Watergate scandal, put a cap on the amount of money that outside donors can spend in direct coordination with their favored candidates.
"Though Citizens United unleashed a 28-fold increase in election spending, the ruling preserved the legality of campaign contribution limits," wrote David Sirota in Rolling Stone on Tuesday. "If those rules are killed off, party committees could become pass-through conduits for big donors to circumvent donation limits and deliver much larger payments in support of lawmakers who can reward them with government favors."
In 2001, the court, then presided over by Chief Justice William Rehnquist, upheld the limits by a margin of 5-4, with Justice David Souter writing in the majority opinion, "there is little evidence" that they "have frustrated the ability of political parties to exercise their First Amendment rights to support their candidates."
This time, Republicans in all three branches of government have seemed to work in tandem to get the law overturned.
In a highly unusual move, the Trump administration's Department of Justice has refused to defend the FEC. And contrary to his job as the federal government's lawyer, Solicitor General John Sauer—who also served as President Donald Trump's lawyer in the case that granted him "presidential immunity" from prosecution last year—has joined the Republican plaintiffs in calling for the Supreme Court to strike down the law.
Without the government to defend the law, the Supreme Court was put in charge of appointing an amicus curiae—"friend of the court"—lawyer to take up the FEC's defense.
The justices chose Roman Martinez, a member of a group run by the right-wing Federalist Society who has spent most of his career working for Republican presidential campaigns and has clerked for conservative Justice Brett Kavanaugh and later Chief Justice John Roberts during the time he was deliberating Citizens United. Since 2016, when Martinez went into private practice, he "has led high-profile cases for corporate clients and political lobbying interests," according to The Lever.
The most notable of these was a case last year before the Supreme Court that overturned the Chevron doctrine, which had given government agencies leeway to interpret ambiguous statutes as they saw fit. Martinez, who has described himself as an opponent of "government overreach," called Chevron “a doctrine that puts the thumb on the scale in favor of the government.”
While experts have said they still believe Martinez will take his job seriously, having an outsider defend the coordinated spending limits puts the defense at a structural disadvantage: "It’s very different than when an agency with decades of expertise is defending their own law,” said Tara Malloy of the Campaign Legal Center.
Lever reporters Jared Jacang Maher and Katya Schwenk described the case as a "Citizens United 2.0" that, if successful, would further obliterate limits on campaign spending:
Since 2022, party committees reported $241 million in coordinated spending, compared to over $858 million in "independent" expenditures on individual campaigns. Striking the coordinated-expenditure cap could shift vast sums into direct, mega donor-driven collaborations between parties and candidates.
At the same time, the court is also hearing a case, Sittenfeld v. United States, with wide-ranging implications for the government's ability to prosecute politicians who accept bribes. The case was brought by former Cincinnati City Councilman PG Sittenfeld, who was caught accepting a $20,000 campaign contribution in exchange for supporting a local development project.
Though Sittenfeld is a Democrat, he has already been pardoned by Trump and is challenging his conviction with pro bono representation from the DC law firm Jones Day, which has served as counsel for Trump's campaigns as well as the Republican National Committee and helped defend Trump's cases to overturn his loss in the 2020 election.
"Those circumstances and all that legal firepower make clear that this is less about one shady municipal deal and more about broadening a string of rulings making it increasingly impossible to prosecute public corruption cases," Sirota argued.
The court already narrowed the definition of bribery substantially last year when it ruled that statutes criminalizing overt "quid pro quo" deals between politicians and donors did not ban "gratuities"—gifts of value given to politicians after an act has already been performed. This was notably the exact form of corruption that conservative Justices Samuel Alito and Clarence Thomas participated in when they received substantial gifts from billionaire right-wing donors.
"Sittenfeld’s appeal aims to take the Supreme Court’s legal assault on anti-bribery laws even farther," Sirota said. "In legal briefs, his lawyers are offering a novel theory: They insinuate that pay-to-play culture is now so pervasive that it should no longer be considered prosecutable."
One brief even cites Trump himself as a primary example of this endemic corruption: On the campaign trail in 2024, he directly asked oil executives for $1 billion in campaign cash, pledging to do favors for the industry in return. Sittenfeld's lawyers argue that a "prosecutor could doubtless present this meeting alone as at least ambiguous evidence of a quid pro quo" and lament that “politicians are open to prosecution if they say anything during these often informal, unscripted conversations that can be read to even hint at a possible quid pro quo.”
Sirota said these two cases follow the same tactics used during Citizens United, using a small dispute over a technicality to legislate major changes to campaign finance law that could never get through Congress.
"It’s the same dynamic today," he says. "Conservative groups behind today's two new cases undoubtedly hope that their spats over the esoterica of campaign finance and bribery law prompt the even-more-conservative court to not merely mediate these specific conflicts, but to issue broad rulings instead incinerating any remaining deterrents to pay-to-play corruption."
