Citizens United Vindicates Fundamental First Amendment Principles
Mainstream critics of Citizens United—of which there are many and they are fierce—almost uniformly fail to respond to the most significant aspect of the case, namely the majority’s rationale and Justice Kennedy’s First Amendment analysis in particular. This failure is unfortunate because the case actually vindicates deeply embedded and well-established First Amendment principles. It is true that Citizens United overruled a 20-year old precedent, Austin v. Michigan Chamber of Commerce, so to claim that Citizens United vindicates well-established First Amendment principles may seem like a stretch. But a couple of facts about Austin suggest that it’s not. First, Austin itself was the first case in which the Supreme Court had ever sustained a prohibition of independent corporate spending on speech about political candidates. Confronted with such prohibitions in the past, the Court avoided the First Amendment issue—to the dismay of the liberal Justices, who chided the Court for its failure to reach and to vindicate the First Amendment claim that “reaches the very vitals of our system of government.” Second, and more telling, is the Government’s brief and oral argument in Citizens United, which asked the Court to affirm Austin’s holding but to scrap its rationale. Indeed, by deploying in Citizens United an entirely different line of reasoning from that upon which the Austin Court relied, the Government itself disavowed whatever principle Austin purported to vindicate. The conclusion is inescapable: in overruling Austin, Citizens United reaffirmed the deeply-embedded principles that Austin had repudiated.