The Campaign Finance Debate After Citizens United
| Citation | Vol. 27 No. 4 |
| Publication year | 2010 |
Georgia State University Law Review
Article 10
3-13-2012
The Campaign Finance Debate After Citizens United
Michael Kang
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Recommended Citation
Kang, Michael (2010) "The Campaign Finance Debate After Citizens United," Georgia State University Law Review: Vol. 27: Iss. 4, Article 10.
Available at: http://digitalarchive.gsu.edu/gsulr/vol27/iss4/10
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THE CAMPAIGN FINANCE DEBATE AFTER CITIZENS UNITED
Michael S. Kang
Citizens United1 is the most important campaign finance decision of the last thirty years and the fitting subject of this symposium, An Intersection of Laws: Citizens United v. FEC, hosted by Georgia State University College of Law. Indeed, no decision has received such intense public attention in election law since Bush v. Gore. No surprise, then, that this symposium attracted such an esteemed group of scholars and practitioners with a diversity of views about the decision and its implications. It was an honor to participate, and my assignment is to identify themes and ways forward across these many reactions.
First, a quick description of the decision itself. Citizens United held that prohibitions on corporate electioneering in federal elections are unconstitutional under the First Amendment. Prohibitions on corporate expenditures had been a pillar of federal campaign finance law for at least sixty years, while broader prohibitions on corporate electioneering communications, as defined by the Bipartisan Campaign Reform Act,4 were newer but recently upheld in McConnell v. FEC less than seven years ago.5 These prohibitions violated the First Amendment, according to Citizens United, because they imposed government "restrictions on certain disfavored speakers," namely corporations.6
This differential regulation of corporations could not be justified, the Court explained, because the only government interest in regulating campaign finance is the prevention of actual or apparent corruption. The Court expressly overruled precedent supporting
1. Citizens United v. Fed. Election Comm'n , 130 S. Ct. 876 (2010).
2. Id. at 913.
3. Id. at 953 (Stevens, J., dissenting) (noting the historical pedigree of corporate restrictions in campaign finance, including the prohibition on corporate expenditures in the Taft-Hartley Act of 1947).
4. 2 U.S.C. § 441b(b)(2)-(3) (2006).
5. McConnell v. Fed. Election Comm'n, 540 U.S. 93, 224 (2003).
6. Citizens United, 130 S. Ct. at 899.
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application of this corruption interest to a distinct worry about corporate wealth. Electioneering by corporations could be not be restricted based on the notion that their treasury wealth posed the potential to "distort" the political process through spending disproportionate to the public's support for the corporations' ideas. As a result, a prohibition on independent expenditures and electioneering communications by corporations could not be sustained under the First Amendment. Independent electioneering as a categorical matter, whether by individuals or corporations, simply "do not give rise to corruption or the appearance of corruption."
Gene Nichol and Joel Gora look back to this central reasoning in Citizens United and disagree violently about its merits. These opposed contributions of my colleagues to this symposium revisit the classic debate in campaign finance reform between critical democratic values of equality and liberty. Nichol and Gora take polarized positions on Citizens United with personal conviction that is rare in drier, less politically salient areas of law, but not unusual for the subject of campaign finance reform.
On one hand, Gene Nichol criticizes the decision and argues that "Citizens United renders all campaign finance limitation silly and...
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