Symposium foreword.

• Author: Fein, Ronald A.

It's been just over five years since the Supreme Court's widely-criticized decision in Citizens United v. FEC, which swept away a federal ban on corporate expenditures in federal election campaigns. (1) The decision provoked widespread criticism for the Court's rejection of a constitutional distinction between corporations and natural persons, and its pronouncement that independent political expenditures, even from corporations, cannot "corrupt" the political process. (2)

The public is remarkably united in its disagreement with both premises. Multiple polls show that an overwhelming majority of Americans--about 80% of both Democrats and Republicans--oppose the Citizens United ruling and support limits on corporate and union political spending, as well as campaign fundraising and spending in general. (3) And as of this writing, sixteen states--as well as 665 cities and towns across thirty-eight states--have passed resolutions calling for an amendment to overturn Citizens United, (4) In the words of Judge Calabresi, the democratic value of political equality "is so fundamental that sooner or later it is going to be recognized. Whether this will happen through a constitutional amendment or through changes in Supreme Court doctrine, I do not know. But it will happen." (5) Since Citizens United, decisions in areas ranging from campaign finance (6) to corporate religious exemptions (7) have enhanced the urgency of developing new ways of thinking about the role of money in politics, the role of corporations under the First Amendment, how corporate law should respond to Citizens United and its progeny, and, most importantly, strategies for moving forward.

This symposium issue features nine articles developed from discussions among an extraordinary assembly of scholars, public interest lawyers, and public officials at a one-day symposium on November 7, 2014 at Harvard Law School. The articles in this issue reflect fresh insights, from both constitutional and corporate law, on how best to understand the intersection of money, politics, corporations, and the Constitution. But first, some background.

1. CITIZENS UNITED AND ITS AFTERMATH

   Citizens United, a nonprofit corporation, sought to distribute a video-on-demand documentary criticizing Hillary Clinton shortly before a 2008 Democratic primary election. (8) This plan appeared to run afoul of a provision of the Bipartisan Campaign Reform Act of 2002 prohibiting corporations (and unions) from using general treasury funds to make independent expenditures for "electioneering communication[s]." (9)

   Citizens United sued the Federal Election Commission, basing its primary argument on statutory interpretation. It argued that a video-on-demand program, which customers would have to affirmatively select and pay for, did not meet the statutory definition of "electioneering communication." (10) But Citizens United also raised a First Amendment challenge. By the time Citizens United got to the Supreme Court, its argument was constitutional but narrow. The appeal presented the key question as "[w]hether the prohibition on corporate electioneering communications in the Bipartisan Campaign Reform Act of 2002 ('BCRA') can constitutionally be applied to a feature-length documentary film about a political candidate funded almost exclusively through noncorporate donations and made available to digital cable subscribers through Video On Demand." (11) But the Court's ultimate decision swept far more broadly, with a number of remarkable conclusions.

   The Court, in a 5-4 opinion by Justice Kennedy, declared that "independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption," and that "[t]he appearance of influence or access ... will not cause the electorate to lose faith in our democracy." (12) It rejected any constitutional basis for regulating corporations' political expenditures differently from those of natural persons, describing corporations as Tocquevillian "associations of citizens" and implying that a law that "exempts some corporations but covers others" invidiously discriminates against "certain disfavored associations of citizens--those that have taken on the corporate form." (13) And as to whether the "citizens" constituting these "associations" actually support management's decisions on political spending, the Court declared that there was "little evidence of abuse that cannot be corrected by shareholders 'through the procedures of corporate democracy.'" (14)

   Citizens United thus brought together two areas of law: campaign finance and the extension of constitutional rights to corporations. In campaign finance, Citizens United reversed decades of precedent allowing limits on corporate (and union) political spending. (15) But its seeds had been planted in Buckley v. Valeo, which treated campaign money as protected "speech" in the first place. (16) As for corporate constitutional rights, Citizens United represents the culmination of a trend, which began in the 1880s (17) but was mostly dormant until the 1970s, (18) of extending to...