Beyond Citizens United.

• Author: Stevens, John Paul

On January 27, 2010, in his State of the Union address, President Obama declared:

With all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests--including foreign corporations--to spend without limit in our elections. I don't think American elections should be bankrolled by America's most powerful interests, or worse, by foreign entities. (1) In that succinct comment, the former professor of constitutional law at the University of Chicago Law School made three important and accurate observations about the Supreme Court majority's opinion in Citizens United v. Federal Election Commission (2): First, it did reverse a century of law; second, it did authorize unlimited election-related expenditures by America's most powerful interests; and, third, the logic of the opinion extends to money spent by foreign entities. That is so because the Court placed such heavy emphasis on "the premise that the First Amendment generally prohibits the suppression of political speech based on the speaker's identity." (3) Indeed, the opinion expressly stated, "We find no basis for the proposition that, in the context of political speech, the Government may impose restrictions on certain disfavored speakers." (4) Somewhat inconsistently, however, the Court also stated that it would not reach the question whether the Government has a compelling interest "in preventing foreign individuals or associations from influencing our Nation's political process." (5)

Today, instead of repeating arguments that I advanced in my dissent from the Citizens United decision, I shall mention four post-decision events that provide a basis to expect that the Court already has had second thoughts about the breadth of the reasoning in Justice Kennedy's opinion for a five-man majority. The first relates to Justice Alito, the second to Chief Justice Roberts, the third to the Court's unanimous summary decision a few months ago in a case upholding the constitutional validity of a prohibition on campaign expenditures by a non-citizen Harvard Law School graduate, (6) and the fourth to my own further reflection about the rights of non-voters to influence the outcome of elections.

I.

Justice Alito--who was in the audience for the 2010 State of the Union address and had joined the majority opinion in Citizens United--reportedly mouthed the words "not true" in response to the President's comment that I have quoted. (7) Although I have not discussed the matter with him, I think Justice Alito must have been reacting to the suggestion that the opinion would open the floodgates for corporations controlled by foreign entities as well as those wholly owned by American citizens.

I draw that inference because, instead of responding directly to my dissenting opinion's comment that the Court's reasoning would have protected the World War II propaganda broadcasts by Tokyo Rose, (8) Justice Kennedy stated that the Court was not reaching the question. (9) Given the fact that the basic proposition that undergirded the majority's analysis is that the First Amendment does not permit the regulation of speech--or of expenditures supporting speech--to be based on the identity of the speaker or his patron, it is easy to understand why the President would not have understood that ambiguous response to foreclose First Amendment protection for propaganda financed by foreign entities.

But Justice Alito's reaction does persuade me that in due course it will be necessary for the Court to issue an opinion explicitly crafting an exception that will create a crack in the foundation of the Citizens United majority opinion. For his statement that it is "not true" that foreign entities will be among the beneficiaries of Citizens United offers good reason to predict there will not be five votes for such a result when a case arises that requires the Court to address the issue in a full opinion. And, if so, the Court must then explain its abandonment of, or at least qualify its reliance upon, the proposition that the identity of the speaker is an impermissible basis for regulating campaign speech. It will be necessary to explain why the First Amendment provides greater protection to the campaign speech of some nonvoters than to that of other non-voters.

II.

A few months after its decision in Citizens United, the Court upheld the constitutionality of Section 2339B of Title 18 of the U.S. Code, which makes it a federal crime to "knowingly provid[e] material...