For a Small Amount of Doctrinal Gain, the Citizens United Majority Produced a Maximum Amount of Pain

Trevor Potter
Oct 28, 2010
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On reflection, the doctrinal shift in Citizens United was not as enormous as first thought--the Court really only moved from substantial First Amendment rights for corporations to unlimited rights. However, the snowball effect has been larger than the majority may have expected, especially because of FEC sabotage of the Court's disclosure expectations. Just ask the people of Colorado or Nevada or other battleground states what the practical applications have meant.

The following is based on a post by Trevor Potter on Rick Hasen’s Election Law Listserve last week.   

I am struck as I think about these issues by how the reasonably small doctrinal differences in Citizens United have such enormous practical consequences. I realize that the gap between minority and majority views is perceived to be enormous, but it really wasn't. If the issue is viewed on a scale of one to ten, the debate in Citizens United can be said to have taken place between "eight" and "nine" on that scale. A “one" would be the view that corporations are artificial creatures of the state with no rights except those specified in their charter, and a "ten" the concept that corporations are indistinguishable from individuals for all First Amendment speech purposes. In fact, prior to Citizens United, corporations had robust, Court-protected opportunities to participate in the federal political process, and in the political process in the states (roughly half) that did not prohibit direct corporate political expenditures.  

The false dichotomy presented by the advocates of the majority opinion in Citizens United is that the Court ignored the First Amendment prior to Citizens United, at which point the scales fell from the eyes of enough Justices to (finally) embrace the Constitution's Free Speech guarantees. This is an unrecognizable caricature of the Court's position. Beginning with Buckley (1976), and continuing through Bellotti (1978), National Right to Work (1982), Massachusetts Citizens for Life (1986), Austin (1990), Beaumont (2003), and McConnell (2003), the Court implemented the First Amendment's requirements in the corporate context, while respecting the choices made by the legislative and executive branches in election administration and the deterrence of corruption. What happened in Citizens Unitedwas not that the Court suddenly discovered the First Amendment, but rather that a change of a single Justice enabled the minority in McConnell to become the majority in Citizens United, ignore the doctrine of deference to the other branches, overturn a century of history, and determine that their theory of the First Amendment was superior to that of their predecessors. 

Even after what Brad Smith has termed the "draconian" McCain-Feingold law was upheld by McConnell, corporations could engage in unrestricted political speech with their shareholders and executives (their "restricted class"), could use corporate funds to establish, administer, solicit for and encourage a PAC comprised of money from individuals (which itself could make both unlimited independent expenditures and  contributions to candidates larger than individuals), and could use corporate treasury money to run advertising for or against ballot measures and to pay for unlimited  issue ads talking about issues of concern to the corporation (provided they were not run in the midst of the election period if they referred to federal candidates up for election in that state). Non-profit corporations (usually the poster child in the corporate rights argument) were already allowed under the Court's previous MCFL decision to make unlimited political expenditures provided they did not do so as a conduit for for-profit corporate money.

Under this pre-Citizens United view, corporations thus had limited but important expressive rights, despite being correctly identified in Austin and Bellotti as possessing extra powers in the political marketplace by virtue of being an artificial person with unlimited life, aggregating wealth in a manner different from natural persons, and serving a legally narrow purpose of benefiting shareholder economic well-being. The Court moved from this "eight" position to a "nine" on the scale of corporate rights at least partially based on the currently bankrupt assumption that the sources of funding of corporate speech would be fully disclosed so that shareholders could exercise their  rights of governance and, more importantly, voters would know who was speaking. (I say only a "nine" on the 1-10 scale because the majority suggests their view of the First Amendment rights of citizens to hear all views is not absolutist--it may well not extend to the views of non-U.S. corporations, foreign nationals, or other foreign entities, and perhaps to certain U.S. entities if a specific tie to the dangers of quid pro quo corruption can be shown in the future). 

My point is that the Court majority in Citizens United chose to ignore the carefully considered policy choices made by Congress in McCain-Feingold (and in the post-Watergate FECA, and the Taft-Hartley law, and earlier laws) in order to move constitutional doctrine only incrementally further in an absolutist First Amendment direction. In doing so, the Court (which includes not a single judge with practical experience in elective office since the departure of Justice O'Conner) has unleashed a significant and as yet ill-defined change on our democracy – a change that they did not fully understand, as made clear by their statements regarding the level of disclosure that would exist "today" .  

Some have said that public displeasure with the Court's Citizens United decision is irrelevant.  It is quite true, and quite right, that we do not put the Bill of Rights up to a plebiscite of voters, or the much smaller universe of persons who respond to opinion polls. However, what the polls reflect is what we know to be true – a a five-four Supreme Court decision abruptly has wrought an enormous change in the way our elections are conducted, contrary to the will of Congress and the Executive expressed in legislation after a long-drawn out legislative conversation that was itself based on a hundred years of previous enactments and discussion of these issues. In doing so, the Court upset settled law reaffirmed only a few years previously by the same Court, motivated by what appears to be a quest for doctrinal change – and by irritation with the language of Austin –  regardless of consequences (or perhaps unaware of consequences, as the Court's statements on the ready availability of disclosure  suggests).  As noted above, I believe the majority's theory was only an incremental change from the Court's previous doctrine - but the resulting practical change looks to be far more dramatic. For instance, I suspect we have only begun to glimpse the upheaval it will cause in corporate law, as states look to increase shareholder say in the process by which corporations approve political expenditures.

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