Nor would eliminating Citizens United overrule any other case. For example Arizona Free Enterprise Club and McCutcheon had nothing to do with either corporations or "independent electioneering" which were the essential elements of the Citizens United ruling, as discussed below. It would not even overturn the political decrees in Citizens United itself. They could live on too.
Bush's proposal to "eliminate Citizens United" would overturn only its legal ruling, the single legal question that the Court could legitimately address under the Constitution's "case and controversy" restriction on judicial power.
The legal ruling necessary to support the decision in Citizens United extended the decision by Justice Powell in Bellotti (1978). Bellotti held that corporations can spend money in elections to promote political issues. Citizens United extended this ruling to include candidates. The Bellotti ruling had meanwhile been expanded to include "sham issue ads," political advocacy that pretends to be issue advocacy but is actually election advocacy for or against candidates, without quite saying as much.
Until Citizens United it remained illegal for corporations to finance electioneering expressly for or against candidates. But the Court allowed corporations to spend as much as they want on these "sham issue ads," which were almost, but not quite, the same thing. Such ads are considered to be very effective vehicles for negative campaigning, which is precisely what David Bossie's organization wanted to do in ways it thought the FEC might consider illegal. Bossie filed Citizens United to contest just how sham a "sham issue ad" could get on its way toward seeming indistinguishable from outright campaign ads, which corporations were then forbidden to finance.
The "sham" element of issue ads had already been sliced so thin by the Supreme Court in FEC v. Wisconsin Right to Life, Inc. (2007) as to provide only a sliver of difference between them and ordinary campaign ads that were still illegal for corporations. Bossie's video about Hillary Clinton distributed with corporate money during the 2008 primary was so incredibly sham, that he was inviting the Court to slice the difference even thinner so as to make that prohibited sliver essentially disappear. This case was designed by the pluto-activist attorney James Bopp to test those limits.
The important point is that the kind of material that was prohibited as not credibly about issues but about candidates was only the thin sliver represented by the use of a few prohibited express words as was necessary for the Court to preserve the pretense that some corporate electioneering, in its most blatant form, was still prohibited, as it had been since Teddy Roosevelt's administration. Any amount of subtlety whatever would earn a free pass for corporate financing of electioneering material. The difference was, for practical political purposes, far more theory and semantics than real.
But four justices did not want to perform more slicing of this already thin sliver of difference. Roberts ordered rehearing of the case so that they could legalize that last sliver of blatant corporate campaign ads under a different theory. The new theory would release the Roberts 5 from further slicing duties. Citizens United left the sham issue ad doctrines in place, but rendered them unnecessary by authorizing corporate-paid campaign ads for or against candidates provided they were undertaken independently of the campaign.
Long prior to Citizens United the Court had already completed a series of three cases allowing first individuals in Buckley (1976), then non-profit corporate political groups in Federal Election Comm'n v. National Conservative Political Action Comm. (1985), and then political parties in Colorado Republican Federal Campaign Committee v. Federal Election Com'n (1996) all to make "independent" electioneering expenditures if not coordinated with a candidate or a candidate's campaign. Citizens United allowed for-profit corporations to similarly "say" (i.e. "spend" - remember, Buckley said money=speech) whatever they want for or against a candidate provided they did so independently.
Unlike slicing that sliver of difference represented by "sham" ads, policing that "independence" requirement was not the Court's job, even though it was required by the Constitution for overturning a law. The Court left that job to President Obama. If not policed by Obama, then so much the better for plutocrats.
That is what Citizens United, the legal case -- not its illegitimate political decrees -- actually decided. As a legal ruling, it is incredibly narrow, almost insignificant. It expanded the doctrine "independent" electioneering to include for-profit corporations. But in doing so it was legalizing only a vanishingly small sliver of prohibited activity not already allowed by the "sham issue ad" cases.
The practical impact of the legal decision in Citizens United can be best understood by considering what would be left in place if the decision were eliminated from the law books, as Jeb proposes. First, corporations would be free to go back to slicing the word "sham" to make issue ads that were the virtual equivalent of the same campaign ads legalized by Citizens United. Most observers felt that Citizens United tacitly won that "sham issue ad" ruling from the Court in its first 2009 hearing of the case, before the Roberts Five decided to reargue the case in order to broaden its 2010 ruling to legalize independent corporate electioneering. In other words, and this might require a deep breath in the face of all the propaganda touting the importance of Citizens United, but overturning the legal ruling legalizing corporate campaign ads that the Court made in Citizens United would be so insignificant as to not necessarily even overturn the legal consequences of Citizens United itself. To do that would require going after Buckley's bizarre notion that money is speech.
Second, although corporations could not make unlimited "independent expenditures" that were not also sham issue ads if Citizens United were eliminated, the plutocrat owners of those same corporations could, unless Buckley were overruled. In fact, after Citizens United it was primarily plutocrats like Sheldon Adelson and Kochs, not their corporations, who did make such unlimited independent electioneering expenditures.
Overturning Citizens United would thus not restore anything of "the left's view of the First Amendment." But at this point in the discussion there is an important side bar to consider. Here President Obama enters the picture.
Corporations, it was soon discovered, were effective for hiding political investments. This is useful both for reputational purposes but even moreso for covering up bribery. For example, when government contractors illegally kick back money to benefit politicians who route lucrative contracts their way by earmarking overpriced no-bid procurement deals for them, it is difficult to prevent or prosecute the bribe if that kickback payment can be made anonymously through a corporate entity created just for that purpose. Hence "dark money" and the rise of SuperPACs, political LLCs, 501(c)s and other exotic conduits for investing anonymous corporate cash in influence peddlers became the latest fad in dollar politics.
This was not at first seen to be an important issue. President Obama had the authority by the proverbial stroke of his pen to make all potential government contractors disclose their newly legalized "independent expenditures." His SEC, IRS, and FEC agencies had authority to make all corporations in the political game disclose theirs too. But Obama, the most legally corrupt president in American history, adamantly refused to exercise his power to require disclosure. In fact he ultimately managed to get a law enacted that revoked those powers so that activists would stop nagging him about his refusal. This law also set a precedent for binding any future president who may not be as friendly to plutocracy as Obama.
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