The Federalist Society Online Debate Series


Citizens United v. FEC: A Roundtable Discussion
February 3, 2010

Last updated: Wednesday, March 3, 2010 at 9 AM

On January 21, 2010, the Supreme Court announced its decision in Citizens United v. FEC. The Court held that the government may not limit corporate independent expenditures in elections. The Court reasoned that such limitations violate the First Amendment because the First Amendment prohibits restrictions on disfavored speakers. In addition, the Court held that the Bipartisan Campaign Reform Act’s disclosure requirements, as they applied to Hillary: The Movie, were constitutional. The Court reasoned that such requirements were permissible due to a governmental interest in providing the electorate with knowledge about sources of election spending. In this installment of Originally Speaking, Barry Friedman, Erik S. Jaffe, Trevor Potter, Larry E. Ribstein, and Howard M. Wasserman will discuss the decision, the soundness of its reasoning, and its implications.

 

Larry E. Ribstein



Larry E. RibsteinBio

In general, Justice Kennedy's majority opinion and Justice Stevens' dissent represent diametrically opposed views of the corporation. The majority gives short shrift to arguments for distinguishing corporate speech based on corporations' supposed special advantages, corruption by corporate speakers, and the need to protect shareholders. From the majority's perspective, restricting corporate speech would silence one faction rather than, as the founders wanted, "permitting them all to speak." The dissent, on the other hand, sees corporations as a "distinctive threat to democratic integrity posed by corporate domination of politics" because they can use their special powers to amass resources for speech that do not indicate popular support. Thus, restricting corporate speech is essential to preserving the marketplace of ideas. Rather than responding to this argument, the majority simply assumes the problem will take care of itself. This leaves the debate over corporate speech to rage for another day, and another majority on the Court.

Neither the majority nor the dissent sees the corporation for what it is – a set of contracts among the participants. The majority sees the corporation as a person with a right to speak, while the dissent sees the corporation as a person that threatens the right of speech. The only way to resolve this debate is through a twenty-first century understanding of corporations.

As I noted in my article, Corporate Political Speech, 49 Wash. & Lee L. Rev. 109 (1992), published shortly after the Austin case, powerful market forces discipline corporate contracts. Managers of for-profit firms are limited in their ability to invest in politics by the simple fact that they can't stay in business over the long run if they lose money. Beyond product markets, there is significant competition in the markets for capital, for corporate law, for control of corporations and for managerial positions.

The standard answer to such an argument is that markets are imperfect and therefore leave managers slack to use corporate money to indulge their political views. Although this is true, it's a long way from the dissent's corporations-run-amuck "distortion" argument. It amounts to trusting the government to get the balance among speakers just right.

The problem is that agency costs are ubiquitous. Managers of non-profits and "ideological" firms also can use surplus from their firms' moneymaking activities to support political action. Indeed, managers of for-profit firms are even less likely than those of non-profits to prefer selfish political investments because they have so many other opportunities for financial gain.

In other words, once you get away from the idea of corporations as Frankenstein monsters and see them as imperfect contracts, the question comes down to: whom do you trust? If government gets the balance wrong, the result would be to redistribute corporate power to other groups. The First Amendment reflects the framers' view that an imperfect competition among factions beats leaving it to incumbent politicians to decide who can speak against them.



Howard M. Wasserman



Howard M. WassermanBio

Austin v. Chamber of Commerce, the 1989 decision overruled in Citizens United, was a theoretical and doctrinal outlier under the First Amendment. Austin had adopted a corruption-by-distortion rationale that really was about leveling the amount of speech down to the level of less-powerful speakers, even though the Court had previously rejected leveling as inconsistent with free speech principles. Austin justified regulation of one class of speakers out of fear that some speech would be so powerful and persuasive that it would drown out other voices in the marketplace and overwhelm listeners (and voters) by sheer volume and repetition, defining that very persuasiveness as “corruption” of the marketplace of ideas. It had adopted a constitutional rule that permitted government to cut-off speech by not-for-profit expressive groups (such as the ACLU, NRA, or Chamber of Commerce) and media entities simply because of their corporate form. And it uniquely targeted corporate expression even though expression by similarly powerful (and wealthy) individuals triggered the same “corruption” concerns. I criticized Austin a decade ago in What’s Good for General Motors: Corporate Speech and the Theory of Free Expression, 66 GEO. WASH. L. REV. 235 (1998).

I therefore welcomed Citizens United in bringing the constitutional rules for corporate speech more in line with typical, more speech-protective First Amendment analysis. I was particularly glad to see two things in Justice Kennedy’s opinion for the Court. First, the Court recognized, in strongest terms, the incoherence of carving out corporations, while leaving unregulated other wealthy, powerful speakers (individuals and non-corporate entities), who also amassed wealth in the market, often with the help of the corporate form. Thus, a wealthy person’s electioneering speech cannot be limited, even if he earned all his money from working and investing in corporations – that is, with the help of the corporate form.

Second, the Court recognized that the First Amendment protects speaker and speech. Speaker identity matters to the message or ideas expressed; every unique voice states a different and unique point of view, and government offends free-speech principles as much by targeting particular speakers as by targeting content. Indeed, the regulation of the former is a guise for targeting the latter. The corporation must be able to speak in its own voice, thereby presenting its own unique message. It is not enough that other speakers could utter the corporation’s preferred point of view (in favor of a candidate or against some initiative) – whether a separate corporate PAC or individuals within the corporation or some unrelated source, such as a candidate or party. When the corporate utters those words, it means something different than when anyone else utters them. A well-informed electorate must be left to hear the corporation itself speak – and accept or reject its message precisely because of its corporate source.



Barry Friedman



Barry FriedmanBio

I'm going to come at Citizens United from a somewhat different perspective. I'm interested in the discussion as it has been happening. As I listen to debates about the propriety and significance of the decision, I find myself craving more data about what its effects are likely to be in the real world.

What I'd like to do, though, is raise two questions. First, why did the Court decide this case when it did? In doing that I'll suggest some connection between Supreme Court decisionmaking and public opinion. Second, I'll ask whether the Court should be taking public opinion into account at all. I'd be interested in feedback on both of these.

As Dahlia Lithwick and I observed in Slate, the timing of the decision was inauspicious as a public relations move. The public generally is up in arms about financial matters, corporations, money in politics, and the like. There is the now-renowned State of the Union-Justice Alito moment. A poll released after we wrote shows widespread dissatisfaction with the decision on the left and the right. The Tea Party movement has attacked the Court for Citizens United. This has not proven your go-down easy decision.

But what I'm immediately curious about is why the Court "stealth overruled" McConnell v. Federal Election Commission in Wisconsin Right to Life v. Federal Election Commission if it was going to go all the way two years later? I'm particularly wondering if this was some sort of trial balloon – see how that one went down, and if there was not too much ruckus, then explicitly overrule McConnell (and, as it happened, Austin v. Chamber of Commerce too). If so, the trial balloon didn't work, and this sort of sequenced decisionmaking won't help the Court.

Which brings me to my second question. In my book The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution, I show that the Court inevitably is accountable to public opinion, and that over the last few years the Court and the public have tended to come into line with one another on the big, salient issues. I'm not arguing there that the accountability of the Court necessarily is a good thing. Most of the book is a history of the relationship between judicial review and public opinion from 1776 to 2005. It is descriptive. On the normative question, I'm – in the Conclusion – distinctly uneasy myself with the notion that immediate political passions would influence the Court. But I'm curious what people think about the Court's accountability to public opinion generally, and how it might play out regarding this decision.



Larry E. Ribstein



Larry E. RibsteinBio 

I don't have a lot to say about Supreme Court politics. From my perspective, Austin was a mistake that the Court has now corrected. But assuming that the politics of this decision are anomalous, I have two possible explanations.

First, the conservative majority may now feel threatened in a way that it was not in 2008 and earlier. Justices Scalia and Kennedy are both approaching 74 and might not survive eight Obama years. Perhaps the time to correct Austin is now or never.

Second, the very thing that makes the political moment wrong arguably makes the judicial moment right: corporations are under political siege and need the Constitution more than ever. This returns to my theme that this case is at least as much about corporations and business as it is about the First Amendment.

It will be interesting to apply this political theory to decisions due later this term on mutual fund executive compensation (Jones v. Harris) and Sarbanes-Oxley (FEF v. PCAOB). The Citizens United majority might be inclined to ensure in the PCAOB case that separation of powers protects business from unwise regulation in a hostile political environment. On the other hand, the Court may go with the political environment on executive compensation in Jones where no strong Constitutional principle is at stake.



Howard M. Wasserman



Howard M. WassermanBio

My instinct (not having studied the issue or yet looked at Barry's book) is that free speech is one area in which the Court has historically been willing to buck public opinion. The Court was somewhat ahead of public opinion in Communist cases, pretty far ahead in protecting speech of Civil Rights protesters, somewhat far ahead in initially protecting sexually explicit speech (at least through the 1960s), and willing to ignore strong public outrage on flag burning. This is hardly absolute or across-the-board (and a closer study may not bear the conclusion out), but some First Amendment doctrine reflects a greater willingness to buck public opinion. More importantly, this strikes me as a case in which any public anger is going to be fairly short-lived (compared with, for example, flag-burning or public religion cases). To the extent the Court is attuned to public opinion, I imagine it is attuned not only to the direction, but also the intensity of opinion. And the Court perhaps is counting (correctly, I would predict) that any fervor will have died down by the time it gets to the next step in the process – whether formally dumping McConnell or dealing with disclosure-of-donor rules later this Term. So even if, as Barry says, this decision has not gone down easy, the Court may count on time and intervening cases pushing the issue out of the public mind. If bucking public opinion only costs the Court political capital, this may be a subject on which the Court is not worried about paying too high a price, at least beyond the very short term.

Interestingly, the timing point that Barry raises runs into the question of whether this was an "activist" decision. The Court has been criticized not only for the timing of the decision, but the way in which it seemingly reached out to get to Austin – calling for re-argument and re-briefing on that issue and, as reflected in the majority opinion, working quite hard to reject all the arguments (constitutional and statutory) that would have protected Hillary: The Movie without requiring the Court to fully dump Austin. So, the question of "why do it now?" is tangled up with the question of "why do it all?" Larry's explanation – the Conservative majority fears it may be nearing the end of its line of control is interesting. I would add that Justice Kennedy has been waiting 20 years to undo Austin, which was decided during his second or third term on the Court; maybe he did see this as his last chance.



Erik S. Jaffe



Erik S. JaffeBio

Part 1 of 2

Regarding Larry's opening comments, I generally agree with his view but would put it a bit differently. Rather than focus on the contractual and market aspects of the corporate form, I tend to view it simply as a form of association, much like Justice Scalia in his concurrence. This highlights the fact that we need not view a corporation as a "person" for First Amendment purposes in order to protect corporate speech, but rather as the speech on many individual persons associating for a common purpose and speaking in association. Viewed that way, corporate speech is just a special case of the broader category of association speech. Many other forms of speech through association arguably have similar problems as does corporate speech. Casual associations where individuals combine to convey a group message similarly have agency problems in that the only way for a moderately large group to say anything is to delegate some control over their expression to a spokesperson or a leader. That the final resulting speech may not perfectly match what any individual might say separately seems inevitable and irrelevant: persons joining the association can make their own choices as to whether the agency costs (including imperfect expressions of individual views) of associating with others outweighs the benefits of collective speech. The same problem arises with non-profit associations and corporations, simple collective petitions, joint letters to congress or the public, and even rallies and parades. If the imperfections of agency are a First Amendment counterweight, then it would seem that the argument proves far too much.

As for the supposed disconnect between the views of a corporation and public support for such views, that argument is both overinclusive and underinclusive. It is overinclusive because many corporations have no such disconnect. I imagine the NRA and the Sierra Club, which have little, if any, for-profit activities, have resources in rough proportion to their support by members or contributors. Small or closely-held corporations likewise are likely to have a close alignment between the views of the shareholders and the views expressed by the corporation given that the agency problems for such corporations are smaller. The argument is also underinclusive given that numerous other speakers have resources that bear imperfect to nonexistent relations to public support for their ideas. Rich folk are the simplest example. Parade or rally organizers likewise may express multiple views only some of which are shared by various participants in the parade or rally.



Erik S. Jaffe



Erik S. JaffeBio

Part 2 of 2

As for the special benefits of corporations, that seems to be an issue unrelated to whether they should speak or not. Any advantage from the ease of shareholder entry and exit (thus making it easier and less risky to raise capital) actually tend to favor the freedom of corporations to speak given that association and disassociation with the corporations is a fairly easy task and hence any shareholder who does not want to contribute to a corporation's speech, or who dislikes the content of corporate speech, can easily exit the association and invest elsewhere. Ironically, the ease of entry and exit regarding corporate associations is far greater than the ease of entry and exit regarding governmental associations, yet the Supreme Court (erroneously) has said that government speech is not subject to the First Amendment. I would think the forced association arguments are a much more compelling for restricting government speech to that which is germane to proper government conduct (much as we treat forced association with bar associations and unions in the agency-shop context). Finally, the limited liability of shareholders in a corporation strikes me as speech positive in that it facilitates association. To the extent there is a problem with undercapitalized corporations slandering people and then being judgment-proof, it strikes me that we could solve that problem with a more narrowly tailored law allowing persons slandered to pierce the veil if a corporate defendant goes bankrupt. So long as such pass-through liability was uniformly applied to all forms of associations, I do not detect any particular First Amendment problem with such a rule, assuming, of course, that the general limits on slander suits (applicable to individuals as well as associations) continue in place and are evenhandedly enforced. I imagine such a rule might lead a number of corporations to adjust their by-laws and voluntarily refrain from risky speech, but there is nothing wrong with that. I am not clear on what other special advantages corporations are supposed to have over unincorporated associations, and nothing leaps to mind as relevant to the First Amendment debate.

Viewing corporations as mere associations, however, raises a more interesting question as to whether associations in general have the same level of First Amendment protection as do individuals. The case-law generally has applied a watered-down version of strict scrutiny to free-association cases, though still far more scrutiny than in some of the campaign finance cases such as McConnell. The text of the Constitution only mentions associated speech in the form of the right to assemble and petition the government for a redress of grievances. The broader forms of free association have been inferred from the freedom of speech (and to some extent from the free-exercise clause I think) and the inference that the right to speak necessarily includes absolutely equal protection for the right to speak as a group is not inevitable. In the end I would still extend full First Amendment protection to collective speech for the reasons given by Larry and an abiding suspicion of incumbents regulating political speech, but at least there is a productive conversation to be had about the scope of protection for collective speech in general. Citizens United thus is both a good First Amendment decision and, given Justice Scalia's concurrence, perhaps a good starting point for a more coherent discussion of how to treat collective speech.

I will try to address some of the public opinion issues raised by Barry in a separate post.



Larry E. Ribstein



Larry E. RibsteinBio

Erik raises an interesting question about the speech rights of groups. Unburdened as I am by a deep knowledge of the First Amendment, I'm going to address it as a matter of first principles. The basic question is whether there is some sort of imbalance involved in group speech that the First Amendment needs to address.

One potential kind of imbalance might be a market advantage that inheres in the group's structure. Structural advantages usually can be dealt with simply by protecting the rights of all kinds of groups to form and then allowing them to compete in the market. Even if insurmountable structural advantages exist, which types should have First Amendment implications? Also, should group-formation advantages be treated differently from individuals' wealth advantages or other endowments? In general, how can these inquiries be cabined to avoid making the First Amendment a vehicle for restructuring society?

Another type of imbalance might be that created by government privileges, such as the supposed privilege conferred by limited liability. Applying this rule requires identifying government privileges. The problem is that government tilts the scale in many ways. For example, limited liability is a response to government-imposed vicarious liability that is imposed on principals for their agents' behavior. The pervasiveness of government makes it hard to clear the slate. Perhaps at some point government-privileged speakers could become so powerful that letting them speak crowds private speakers out of the public debate and makes government even more powerful. But the best way to prevent that is to free private groups to participate in the debate about, among other things, the size of government.

I am not making the strong statement that there is no justification for restricting group speech. But I am skeptical given the line-drawing problems and the First Amendment costs of excessive restrictions.



Erik S. Jaffe



Erik S. JaffeBio

I ultimately agree with Larry that the costs and dangers of government regulation of speech far outweigh any conceivable benefits (of which I find few). Indeed, I suspect I am rather more extreme in my strong-First-Amendment views than most folks reading this discussion.

What I would like to think about more in the context of free association, however, is the line (if any) between economic association and expressive association. I assume most people agree that the government has a considerably freer hand in regulating economic associations than it does in regulating expressive associations. Corporate law governance rules as applied to commercial and publicly traded corporations are readily accepted, yet some might face an interesting challenge if applied to a non-commercial expressive association. Think, for example, of attempts to regulate the internal governing structure and rules for choosing leaders. I assume States have wide latitude in setting such rules in their corporate law, and that the federal government likewise could apply many limits on who can be in leadership positions in a publicly traded corporation. Contrast that with cases involving the Boy Scouts, major political parties, etc., in which attempts to regulate certain internal affairs have been rejected.

Now consider the problem of a mixed-purpose entity (which is probably the proper description of most corporations). When do ordinary corporate governance rules designed to protect the economic interests of shareholders begin to infringe upon their expressive association interests? Could a State adopt a rule that all corporate expenditures must be closely and demonstrably related to making a profit? Could it loosen the business judgment rules to allow a more ready challenge by shareholders to expenditures not within some safe-harbor (salary, supplies, rent, etc., but not charitable contributions, sports events, meals and entertainment, or non-commercial speech)? Could it entirely eliminate the category of non-profit corporation? Could a State forbid discrimination based on political views or political party membership? Religious views? Gender? Even for top executive positions and Board members? For a wholly commercial entity, the answer is likely yes, such restrictions could be adopted. For purely expressive entities the answer is likely no for most of the examples, though perhaps some are debatable. For a mixed entity, the questions are much harder.



Howard M. Wasserman



Howard M. WassermanBio

Part 1 of 2

A flurry of great stuff, so let me respond to and expand on some of the points made.

First, I second Erik's point that corporations are simply another form of association, but I would go beyond Erik and say that the right to speak as a group is inevitable from the right to speak as an individual. De Tocqueville recognized the ability to form voluntary associations as an integral part of the fabric of American society. The individual citizen was typically powerless, particularly for political purposes; associations enable less-powerful individuals to amass power by uniting for their common objects. The business corporation arose from similar associational goals. Democracy and free speech both are premised (in whole or in part – we can debate that another day) on the goal of individual self-realization, of enabling individuals to develop their human faculties and control their destinies. Associations enhance the self-realization value by increasing individuals' ability to speak and act in a way that furthers their developing goals.

In our 1998 article on corporate speech, Marty Redish and I labeled this "catalytic self-realization" – corporations and other associations serve as catalysts in people's ability to develop and control their destinies in their chosen purposes in society. If, as Marty has argued, individual free expression is essential to democracy and the goal of individual self-realization, then associational speech is similarly essential to the goal of individual self-realization, which is made possible by the ability to aggregate power of action and voice. So the scope of groups' ability to speak (as by spending money towards speech) should be co-extensive with individuals' ability to speak, given that the protection of such expression is towards the same goal.

Second, on the issue of corporations having government-sponsored advantages: The expressive playing field is always unequal because some speakers always have advantages over others. Sometimes those advantages are intrinsic (simply being a uniquely gifted orator); other times they are extrinsic and granted from the outside (benefits of education, social status, or wealth). The argument against protection for corporate speech always has ignored those other imbalances that give some speakers an advantage in the expressive marketplaces. There has been an implicit distinction between "government-privileged speakers" who enjoy enhanced power thanks to governmentally conferred benefits (such as limited liability and public stock offerings) and other privileged speakers. Hence the distinction between the corporation and the wealthy individuals who enjoy an untrammeled liberty to speak enhanced by personal wealth.

But, as Justice Kennedy pointed out in Citizens United, most individual wealth is gained through governmentally conferred benefits, such as investments in corporations made profitable by limited liability. So all speakers (individual or associational) who enjoy a powerful voice as a result of wealth (or other advantages) are, in some sense, government-privileged speakers. It makes no sense to single out collective from individual speech. To the extent wealthy individuals enjoy a structural advantage, Larry is correct that it can be overcome precisely by empowering all kinds of associations (of individually less-powerful people) to form and to compete in the expressive marketplace.



Howard M. Wasserman



Howard M. WassermanBio

Part 2 of 2

A few more thoughts on the latest flurry of ideas.

First, Larry's point about making government even more powerful recalls an interesting viewpoint-based tilt to regulations of corporate speech. The assumption always has been that corporate speech would be pro-market, anti-regulatory, pro-tort-reform, and anti-government. So it is interesting that Larry links overly powerful corporate (government-privileged) speakers to an increase in government power. I view it in the opposite direction: Corporate (especially for-profit corporate) speech probably will be sharply critical of government and of the size of government in many cases and, to the extent the message resonates, a decrease in government power. (To the extent the message does not resonate, that just demonstrates that having money and power to spread the message does not make the message convincing).

Second, Erik's point about the relatively low cost of exit as justifying agency costs also shows why the shareholder-protection rationale does not work and why unions are different. When union membership (or at least limited dues) is required by law as a condition of employment, the cost of exit is intolerably high – lack of voluntary choice and loss of the opportunity to work. No such exit costs attend corporate shareholders – no one is compelled to invest in a corporation and, other than the loss of opportunity of to make profitable investments, no one needs to invest in a given corporation in order to survive.

Third, as a doctrinal matter (we can bracket the normative question for a later post), government could regulate corporate expenditures to protect shareholders, so long as it did not target only expressive expenditures. Thus, a state could adopt Erik's rule that all expenditures be "closely and demonstrably related to making a profit," thus permitting shareholders to challenge both expressive and non-expressive expenditures. A state also could adopt some version of the looser business-judgment rule, so long as the expenses subject to challenge were not only expressive. Under O'Brien and the content-neutrality cases, a generally applicable law that only incidentally burdens speech typically receives (and survives) less scrutiny. On the other hand, a shareholder-protection law that made speech uniquely challengeable would be subject to (and likely fail) strict scrutiny by singling out expressive activity from among all activity that implicated a governmental interest.

Finally, let me throw a question out: Some have suggested that a state (or Congress, even) could require corporations to submit the question of whether the corporation can engage in electoral and other political speech to a shareholder vote. The default rule would be that the corporation can speak with general funds, unless the shareholders vote otherwise (that is, the legal rule is an opt-out provision). Is this valid? Is it a good idea?



Larry E. Ribstein



Larry E. RibsteinBio

As I said in my opening post, both majority and dissenting opinions in Citizens United missed the fact that the corporation is simply "a set of contracts among the participants." This case is about individual rights of free expression, not the supposed rights of a legal fiction. Although corporate contracts are imperfect, the same can be said of all contracts, including those that govern all kinds of associations. If the First Amendment requires associations to be perfect vehicles of individual expression, this could lead to very broad restrictions on group speech and free politicians from their most vocal critics. These considerations are worth taking into account amid the cries to do something about Citizens United.



Howard M. Wasserman



Howard M. WassermanBio 

Citizens United is important for what it says about the ability of individuals to join together in a variety of associational forms and to have those associations offer their singular, unique, potentially powerful voice in the expressive marketplace. It cleared away the First Amendment anomaly of Austin and, as Larry states, removes hurdles on individuals to come together for a variety of expressive activities.

Beyond that, some of the public and political reactions to Citizens United will come to be seen as overwrought and unwarranted because, in the end, nothing much will change. The Court has not yet eliminated the distinction and differential treatment between independent expenditures and contributions, thus the fear of corporate dominance and "buying" elected officials through unlimited contributions is a non sequitur as a criticism of Citizens United. Corporations and unions already were speaking (with little or no limitation) through PACs or related entities, funded through targeted dues or contributions rather than from the general treasury, thus the only difference is the precise identity of the speaker, not the amount of expression. The knee-jerk public opposition to the decision (as part of a broader "anti-corporate bias") will pass, especially when its relative doctrinal significance becomes clear.



Barry Friedman



Barry FriedmanBio

I agree with Howard that in the end much might not change because of Citizens United. It is difficult to see why corporations would want to run the risk of alienating shareholders by engaging in electioneering speech. And I would certainly be supportive of regulations that ensure shareholders know. In addition, given the line-drawing problems – media corporations, what forms of speech are permissible or not – Citizens United may have been the right move under the first amendment.

I'm not certain, though, that the response has been a tempest in a teapot. Time will tell, and - as Larry suggested - decisions later this Term might heighten attention to the Court in areas involving corporate responsibility.

My last thought relates to tying together the "political science" strands of the discussion and the normative strands. it is assuredly correct that there is a reason the Court is relatively insulated compared to the other branches. An independent judiciary is valued precisely because it can at times stand up to the majority in the name of constitutional rights. What we learn, however, is that its ability to do so is constrained to some degree by public reaction. We don't know enough at present to assess the extent of the Court's "leash," but how we should feel about this is most definitely one for normative legal scholars.



Trevor Potter



Trevor PotterBio 

Part 1 of 2:

Allow me to make a few observations, with the benefit of having read the many thoughtful comments by others:

First – regarding the wisdom of the breadth of the decision: Whatever the actual reasons that caused the majority to seek re-argument of this case, ask for briefing on over-turning Austin, and render its decision, this Opinion has the look of an unseemly activist act by the current five-member majority of the Court.  Writers here have speculated that some Justices in the majority may have felt that "time was running out", but whatever the reason it looks more like an act of judicial legislating of the sort usually bemoaned by the Federalist Society than sober constitutional restraint of the sort advocated by the Chief Justice in his confirmation hearings. This is especially so given the obvious hostility some Justices evinced in oral arguments towards Congress and its legislating in this area of law – though Congress certainly has more experience with campaigns and the dangers of corruption than the members of this Court (Justice O'Conner having been the last Justice to have actually stood for office or served in an elected body).

There were numerous "outs" available if the majority really believed that it is always better to avoid overturning an Act of Congress where possible (to say nothing of the laws of some 25 states and numerous local jurisdictions), and that deciding a case on the narrowest possible grounds is a virtue. Instead, Justice Kennedy's Opinion and the Chief Justice's concurrence both make it clear that a solid minority of the Court has disagreed with both the reasoning and the result in Austin for years, and now finally have their fifth vote to right the wrong they perceive. The problem is that the only thing that has changed since the contrary result in McConnell v. FEC a few years ago is one Justice on the Court. The majority does not even attempt to argue that McConnell has proven unworkable, or that the circumstances of election finance are different now than a few years ago – usual grounds for overturning a precedent.

Second, much of the defense of the decision has focused on the benefits of the new freedom now guaranteed for economic corporate speech, and the supposed improvement in associational rights afforded by the decision. There is no point in re-litigating the case now, but I would note two things: first, that the actual change wrought by the decision (beyond the important and in my view dangerous theoretical one of finding corporations are the same as individual citizens for first amendment purposes) is fairly small: nonprofits could make independent expenditures with non-profit funds before (MCFL); economic corporations could engage in ballot measure campaigning before (Bellotti) and in candidate specific issue advertising before (WRTL II), and news entities were exempt from the statute anyway. Thus, the Court made a major doctrinal change from a century (or half-century, depending on your view) of tradition on a 5-4 vote simply in order to free up economic corporations to directly intervene in elections – something they could already do through their PACS. The last point gets to the supposed associational advantage afforded by the Opinion: what is it, given that shareholders and executives and their families could already associate for political purposes through a corporate PAC? Granted, PACS did not have the same amount of money as corporate treasuries to speak, but the symbolic value of their speech (Buckley) already existed, so the Court "merely" allowed them to turn up the volume a hundred or thousand-fold. That may be a major political achievement, but is it a major constitutional one?



Trevor Potter



Trevor PotterBio

Part 2 of 2:

What might the Court have done, consistent with Federalist Society principles, in this case? It could have explicitly rejected the equality reasoning of Austin (which seems to have been the real sticking point for most conservatives here) but either taken one of the "outs" available (such as holding the statute did not cover pay to play movies), or held that principles of federalism (the state statutes) and the respect due Congress and precedent argued against overturning the statute itself when there were alternative (non-equality) reasons available to uphold it.

What WILL the Court do next, now that it has adopted the broad constitutional theory of economic corporations as first amendment citizens and persons, with Justice Kennedy's rationale that government cannot discriminate among speakers, even if some are artificial entities? There are cases making their way through the lower courts now where it is argued that the bans on soft money contributions to national party committees are unconstitutional. The rationale of Citizens United fairly begs for a challenge to the federal (and state and local) bans on corporate contributions directly to candidates (if individuals can give within limits, then why don't corporations have the same right?). Someone will ask the same question about foreign entities – a question Justice Kennedy merely noted was not before the Court in Citizens United. Will the results of these cases be consistent with the majority rationale? If so, will that be good for our Republic?

I argued in my debate with Floyd Abrams that economic corporations are engineered (created by law) to lack an important dimension that our founders believed citizens themselves must have in order for self-government to flourish: Good citizens are supposed to act on occasion for the greater good – for the right, for justice, to advance the long-term good of society. They are expected in some instances to sublimate their own well-being for the betterment of the common whole – in wartime by serving in the military, in all times by serving on juries and by giving of their time for leadership in their communities. There are no such expectations of economic corporations – even those claiming to be "good citizens" are expected to be profit maximizers. This is not a complaint – it is the reality of the difference between the purposes of an economic corporation and an individual citizen – a reality not addressed by the majority in Citizens United. When played out in unlimited independent expenditures, or direct corporate contributions to candidates or party committees to achieve legislative objectives that benefit the corporation's bottom line, this may not be a reality that benefits our Republic. Individuals may make political contributions or expenditures for many reasons, but corporations may only reasonable by expected to give for ONE reason – to advantage themselves in the economic marketplace, regardless of the good of the country.