Citizens United v. FEC: the constitutional right that big corporations should have but do not want.

• Author: Epstein, Richard A.

INTRODUCTION

The most controversial Supreme Court decision of the 20092010 Supreme Court Term was, without question, Citizens United v. FEC. (1) The decision has captured the public imagination both for the question it asked and the answer it gave. In an age of much sharp political division and much incipient populism, it is easy to raise emotional flags by asking the question of whether corporations have the same rights as ordinary citizens. And it is easy for emotional involvement to turn to intense distaste in the aftermath of a decision that it is commonly thought to represent a great triumph of the conservative wing of the Court. All too many commentators, from President Barack Obama on down, have voiced their displeasure at a decision that handed corporate interests a powerful tool by which they can dominate the political arena at the expense of ordinary citizens.

Or so much of the conventional wisdom goes. In this Article, I examine the many questions that swirl around Citizens United to expose the fundamental errors of its many critics. My interest in so doing does not depend on any affection for or hostility to corporate interests. Rather I was drawn to address this case because it requires us to pull together law from a number of different areas to create a coherent analysis of the constitutionality of the statutorily created system in question. Through the course of this Article, I will explore the justifications for the Court's decision in Citizens United from both constitutional and pragmatic perspectives. On the former question, I conclude that the majority has much the better of the issue insofar as it seeks to fold issues of corporate speech into the general fabric of First Amendment law. On the latter, I conclude that from a pragmatic point of view most corporations have little desire to exercise the constitutional rights which they receive, and this for the simplest of reasons. Over a broad range of issues, business success depends on keeping a low profile in general elections. Corporations do far better to concentrate their energies on specific issues of concern to them. They become sitting ducks to the extent they choose to enter any broader political arena.

1. CITIZENS UNITED IN CONTEXT

   Citizens United addressed the question of whether a corporation or a union may use general treasury funds (free of complex regulatory restrictions) to pay for electioneering communications immediately before an election, (2) (when the communications are likely to be the most salient). The Court in Citizens United invalidated the portions of the Bipartisan Campaign Reform Act of 2002 (BCRA) (3) that limited such spending. (4) The BCRA, more than perhaps any other statute, requires some predictive assessment to determine how this complex Act, if it had remained effective in its entirety, would have influenced the conduct of our political campaigns. In addition, the case came before the Court at the beginning of 2010, when the economic fortunes of a nation were uncertain at best. Recriminations have alternately laid fault for these economic woes with big business, excessive government, or some complex interaction of the two. (5) The case thus ties into the genuine struggle between the populist and market sentiments that have become ever more polarized in recent years. The BCRA has generated an enormous amount of controversy, and Citizens United clearly counts as one of the most divisive decisions of the Court in recent years.

   The case did not arise in a void. Citizens United overturned portions of the earlier case of McConnell v. FEC, (6) which had followed Austin v. Michigan State Chamber of Commerce. (7) In McConnell, decided some seven years before Citizens United, Justices Stevens and O'Connor tapped into a strong strand of progressive populism when they upheld the same provisions of the BCRA. In a tribute to New York University (NYU), they noted that the great progressive thinker Elihu Root, NYU Class of 1867, had rightly said that corporate money and politics do not mix, (8) and that some effort to separate the two to reduce the effect of the former on the latter was an appropriate way to analyze the overall matter.

   The Court's approach in McConnell is far from my own. (9) The question for this Article is how to deal with that decision from both a constitutional and pragmatic approach. On both these issues, I remain consistent with the intellectual temperament I developed from the time I left law school in 1968, which was to take comfort that the opinions I expressed were generally out of step with the dominant mode of thought. That was a tactic that I brought with me to the University of Chicago Law School after I left the University of Southern California Law School. And it is one that I happily bring with me to NYU now that I have found a new home at this next stage of my career.

2. THE CONSTITUTIONAL FRAMEWORK

   An analysis of Citizens United is best conducted as a first approximation, disregarding the dominant heat of the day. I take no position, therefore, on whether President Barack Obama or Justice Samuel Alito misbehaved when the President lashed out at the decision during his State of the Union Address. (10) To put the matter in a calmer perspective, it is useful to indicate what the BCRA did, so that the constitutional and economic analysis can take place in an orderly fashion. The key injunction at issue was this: no corporation or union may make an expenditure on an "electioneering communication" within thirty days of a primary or within sixty days of a general election. (11) Communications of all sorts before that time, when they are likely to be less potent, were permissible. Likewise, communications within that period that did not meet the statutory definitions for exclusions also were allowable. (12) But guess wrong and a felony conviction with serious sanctions awaited the overeager election campaigner. The question for constitutional law is whether this provision may be justified under the First Amendment's prohibition against restricting free speech: "Congress shall make no law ... abridging the freedom of speech, or of the press...." (13) Like all provisions, length is inversely related to difficulties of interpretation and application that arise thereafter. The question is how to address the conceptual and economic issues that this provision raises.

   Let us start with a few fundamentals of constitutional interpretation. The first is that the text is the place to start, but it is rarely possible to end there. In this context, there is much fuss about the meaning of the term "speech" and the role that "freedom" plays in defining the scope of the applicable protection. On the former question, speech clearly means "speech plus." It would be odd to say that you can speak at will, but that you are subject to criminal sanctions if you read aloud from a written text whose publication in written form is not protected by the First Amendment. No one on either side of this debate thinks that Hillary: The Movie, which Citizens United wanted to broadcast within thirty days of the Democratic primary, is not protected solely because it is a movie. The move from speech to expression in the standard accounts is an effort to plug this obvious gap in the system of constitutional protection.

   So electioneering communications surely constitute speech. But what kind of speech? Again, there is really no dispute about this particular issue. It is political speech which, in most circumstances, falls within the core of maximally protected speech under Supreme Court decisions. (14) These decisions hold that speech or expression in the Constitution should have something to do with the ability of individuals to engage in constructive (or divisive) controversy about the behavior of government officials, and the laws that these officials either pass or enforce, (15) Citizens United is not a case involving obscenity, libel, fraud, "fighting" words, or any of the other categories of "low speech" that do not garner the same speech-protective response from the Supreme Court. (16) Hillary: The Movie is not even commercial speech; (17) even though the original plans called for the movie to be distributed on cable video-on-demand television, it is surely not some advertisement to buy or sell some particular product.

   At this point, the constitutional inquiry turns to the issue of justification, which is the other half of the matched pair for freedom. Within the classical view of constitutional law, all of these issues were raised in connection with the police power, or the state's ability to deal with matters of health, safety, general welfare, or morals. Here we can quickly exhaust the obvious justifications that might be invoked to regulate other forms of speech, because there was no allegation in this case that the movie was in some sense fraudulent or defamatory. Indeed, it is worth noting that even if the film were fraudulent or defamatory, our jurisprudence clearly indicates that no court could enjoin the publication of a libel. (18) This line of decisions gives rise to the obvious question of why it becomes possible to block, through administrative processes, those kinds of publications that could never be censored by a court of equity. Even damage actions would be problematic because of the actual malice rule that prohibits suits for false statement about a public figure, even if done with negligence or gross negligence. (19) The puzzle thus remains: Why the heavy sanctions here when the ordinary processes of common law dictate quite different results?

   It is equally clear that the speech at issue in Citizens United does not involve cartel or monopoly practices, (20) or abuse of children, (21) or any of the other traditional exceptions to First Amendment protection that are widely accepted precisely because they mirror some classical liberal point of view that shaped the common law. We can also remove...