The case as the excerpts describe it
The excerpts present Citizens United as a campaign-finance decision arising from the collision between political speech and the Bipartisan Campaign Reform Act, commonly called McCain-Feingold. Bob Zadek describes the 2002 or 2003 enactment of McCain-Feingold as, in his opinion, an anti-free speech, anti-First Amendment bit of legislation that attempts to restrict how money can be spent in politics, and he says the Supreme Court later handed down Citizens United, which he says allowed corporations and unions to spend as much as they want in support of a candidate, though they cannot give money directly to the candidate George Washington Was Our Guest (2011).
Mike Munger, an economist at Duke University, supplies the case’s origin story. He says that in the late 1990s he testified before the Senate Rules and Administration Committee that McCain-Feingold would restrict not just express advocacy—“I like Smith and I don’t like Jones”—but electioneering, which he calls purely information. He says the law barred any ad mentioning a candidate’s name within 60 days of an election, and that this was contested in McConnell v. FEC, which he thinks the Court decided wrongly Who Wants to Buy a Politician? With Mike Munger (2015).
Munger recounts that filmmaker Michael Moore’s Fahrenheit 9/11, which he describes as a long excoriation of President George W. Bush, appeared to violate McCain-Feingold; Citizens United brought a complaint to the Federal Election Commission, which first said the film was not within 60 days of the election and later, in 2005, said it was a commercial enterprise shown in movie theaters. Citizens United then made what Munger calls a stupid movie, Hillary: The Movie, about what a bad person Hillary Clinton was. He says the FEC correctly ruled under the law that the film could not be shown or advertised within 60 days of the 2008 election, and that the FEC’s interpretation was correct because the law had been upheld in McConnell v. FEC Who Wants to Buy a Politician? With Mike Munger (2015).
Freedom of association, not corporate personhood
The excerpts return repeatedly to the claim that the decision rests on freedom of association rather than on the idea that corporations are people. Munger says the phrase “corporations are people” never appears anywhere in the decision, and that the decision is based on freedom of association: a group of people can come together, pool their resources, and express political views. He quotes Anthony Kennedy’s opinion—“If the First Amendment has any force—has any force—it prohibits Congress from fining or jailing associations of citizens for simply engaging in political speech”—and says the decision overturned McConnell v. FEC, which he calls unconstitutional in the first place. Munger also says he and others rewrote an amicus brief for Citizens United that Justice Roberts directly referred to, and that he wanted the Court to ask what would happen if the material had been a book published by Cambridge University Press within 60 days of an election; the Solicitor General, he says, answered correctly that the book would be banned Who Wants to Buy a Politician? With Mike Munger (2015).
Munger criticizes Kennedy’s opinion as overly expansive because it extended the issue from nonprofit corporations to for-profit corporations, but he insists the case was correctly decided. Bob Zadek agrees, saying that if one person has freedom of speech, a group of persons have the same freedom of speech, and that it is nothing more sinister than that Who Wants to Buy a Politician? With Mike Munger (2015).
Zadek also raises the conflict-of-interest problem: he says the Democrats and Republicans are first in charge of deciding the rules for campaign finance and second are participants in the game they are designing, and Munger calls this part of the basis for Citizens United—“the referee doesn’t get to play.” Zadek adds that without the judicial system acting as a check on the legislative branch, the legislature would write the rules of the game with a profound bias for incumbency Who Wants to Buy a Politician? With Mike Munger (2015).
Money, rent-seeking and the incentive to buy
The 2015 episode with Munger frames Citizens United within a broader argument about why money flows into politics at all. A caller, John in Mountain View, says money in politics is incentivized by the power of government: the more power government has over our lives, the greater the incentive of money to go toward government and try to gain control of that power. Zadek calls this exactly right, citing tax benefits and trade embargoes as rewards. Munger says the problem is not that there is too much money in politics but that there is too much politics in the way we spend our money on investment, and he describes rent-seeking as the choice a corporation faces between investing in engineers and better products or investing in lobbying and campaign contributions, because the government is selling and is happy to receive your contribution Who Wants to Buy a Politician? With Mike Munger (2015).
Zadek offers Microsoft as an example: the company had almost no presence in Washington until antitrust activity against it in the middle to late 1990s, after which it quickly built a massive Washington presence, spending defensively to protect itself not from competition but from government Who Wants to Buy a Politician? With Mike Munger (2015).
The Founders and republican virtue
In the 2011 episode, Thomas Fleming says the Founders would divide on money and politics and were no more united than we are. He says George Washington would be appalled by our current finance laws and would be very much inclined to agree that there should be no restraints on free speech, citing a Washington motto: “We must take men as they are, not as we wish them to be.” Fleming says Washington must have said that a hundred times during the American Revolution, and that idealists in the Continental Congress clashed with him George Washington Was Our Guest (2011).
The 2014 episode with Frank H. Buckley touches the same theme without naming Citizens United. Buckley recalls that George III said George Washington was the greatest man in the world because he did not become king when he could have, and that Washington and Lincoln had a sense that they should not do anything that looked king-like. Zadek calls Harry Truman the last small-r republican president, and Buckley agrees, contrasting Truman with Tom Dewey, whom he calls imperious and full of himself. Buckley says the ceremonial, Roman-emperor side of the office has increased of late, and wonders whether this is a permanent change in the American voter, referring to millennials as devoid of knowledge of the Founders’ principles Has America Become an “Elective Monarchy”? (2014).
Across episodes
Citizens United is treated at length only in the 2015 Munger episode, where it is analyzed as a freedom-of-association case and as a check on legislative self-dealing. The 2011 Fleming episode mentions the case only as backdrop to a discussion of the Founders and campaign finance, and the 2014 Buckley episode does not name it at all, discussing instead the veneration of the presidency and republican virtue. The 2019 Kaplan episode names Citizens United only in a list of cases where, Kaplan says, you could predict the votes ahead of time. The excerpts show no development in the argument across episodes; the case is argued once, in 2015, and otherwise invoked in passing.
What the sources do not cover
The excerpts do not state the year Citizens United was decided, the vote count, or the amendment the decision turned on beyond general references to the First Amendment. They do not describe the holding in McConnell v. FEC beyond Munger’s characterization of it as wrongly decided and as upholding the provision restricting speech within 60 days of an election. The excerpts do not give the full name of the Bipartisan Campaign Reform Act’s sponsors beyond McCain-Feingold, nor the outcome of the 2019 partisan gerrymandering cases Kaplan mentions. The 2011 and 2014 excerpts break off mid-sentence, so the guests’ further remarks on those episodes are not available.