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Citizens United  |  A Conversation with Bob Bauer '76 and Trevor Potter '82 
Citizens United Vindicates Fundamental First Amendment Principles
Some Answers from a Constitutional Perspective  |   The Supreme Court's Shift

Some Answers from a Constitutional Perspective

by G. Edward White

Professor G. Edward White

Is Citizens United an “historic” decision?

Supreme Court decisions come to be thought of as "historic" for different reasons, but typically such decisions combine significant legal, political, and social consequences with rationales that are capable of being generalized over time (as opposed to rationales that seem driven by the particular factual or historical context of the case). Some such decisions end up being deeply entrenched (Marbury v. Madison being the classic example), others (Dred Scott, Plessy v. Ferguson) end up being labeled "notorious" and repudiated. Whatever their ultimate status, "historic" decisions have large consequences (judicial review, the unconstitutionality of Congress's abolishing slavery in federal territories, the effect of the Equal Protection Clause on legally mandated racial segregation) and rest on interpretations of constitutional provisions (Article III's 'cases and controversies' provision, the 5th Amendment's Due Process Clause, the 14th Amendment's Equal Protection Clause) that were designed to apply long past the time the interpretations were formulated. Using those criteria, one can think of Brown, Griswold, and the majority decision in Lochner as "'historic,” even if some of the doctrinal baggage associated with those decisions ('penumbral rights' in Griswold and 'liberty of contract' in Lochner ) has been abandoned.

Applying these criteria to Citizens United, the decision clearly has significant short-run and potentially longer-run political consequences, especially in a presidential election year. The question, however, is whether the doctrinal basis of the majority opinion in Citizens United is one designed to transform the constitutional jurisprudence of campaign finance cases and thus to apply widely over time.

Is Citizens United a legal argument or an ideological statement? Does it take First Amendment jurisprudence in a new direction?

Part of this question involves something of a detour. I don't think the line between legal arguments and ideological statements is a bright one. Since social and political issues are routinely translated into constitutional arguments in American culture, the Supreme Court consistently entertains cases raising contested questions in society at large. Those questions are contested in part because people approach them from competing ideological perspectives.

So of course the outcome in Citizens United has ideological ramifications, although I am not sure they are easy to categorize in conventional ideological labels. Some people believe that allowing wealthy corporate institutions a virtually unlimited ability to contribute to political campaigns distorts the market for political speech because distributing campaign messages costs money, resulting in the views of wealthier speakers allegedly having more influence. Others believe that the market for political speech works like other markets, with the impact of the speech being determined more by consumers than producers of its content. One might be confident--I am not--in labeling the majority outcome in Citizens United “conservative" or "liberal" (that would seem to depend on a baseline for such terms as applied to free speech cases, and in my view that baseline tends to shift regularly over time).

But surely there is more to the Citizens United decision than its outcome, which gets me to the question about First Amendment jurisprudence. Although Citizens United overruled the Court's 1990 decision in Austin v. Michigan Chamber of Commerce, which allowed a state to prohibit corporations from using their corporate treasury funds to support or oppose candidates for political office, the primary constitutional rationale for Citizens United goes back to a line of decisions beginning with Buckley v. Valeo (1976), in which the Court determined that campaign contributions and expenditures were a category of highly protected political speech and signaled that it was becoming increasingly skeptical of rationales for restricting them; in particular, the rationale of "equalizing the market" for speech about politics by imposing limits on expenditures had been disapproved by a majority of the Court. The only state interest in restricting the amounts expended for political campaigns given weight by Court majorities in the last decade has been that of eliminating the reality or appearance of corruption.

Once shifting majorities in the recent Court reached a consensus that the First Amendment does not permit a restriction on the campaign speech of some individuals to enhance the speech of others, it was necessary to find some link between particular restrictions and the anti-corruption rationale. The problem with applying that rationale to corporate speakers is that it rests on an assumption that there is a meaningful difference between a candidate's being supported by wealthy individuals and being supported by corporations. Since many wealthy individuals and corporations have expended money on the campaigns of both of the major candidates in visible political elections in the last decade, one may assume that their contributions are a "bid for influence" with those candidates without assuming that there is something sinister in those bids for influence when they are made by corporations as opposed to individuals. So Citizens United, rather than being a novel doctrinal innovation, might be seen as the culmination of doctrinal developments in the Court's constitutional jurisprudence of campaign finance since the 1970s.

Will election law scholars and political strategists decades hence see Citizens United as a turning point in American political history, or just another case that fine-tuned how the country manages its elections?

The short-term practical effect of Citizens United has been perceived to be possibly more significant than any of the Court's campaign finance decisions since Buckley v. Valeo. This is because eliminating restrictions on corporate as well as individual spending in elections has freed up candidates to create the "SuperPACs" that can amass large amounts of money for campaigns without having to attend to previous rules limiting campaign expenditures. That effect of Citizens United has clearly been characterized by some as distorting, anti-egalitarian, and having a tendency to support special interests in political campaigns at the expense of the interest of the individual voter.

Here is where perceptions of the political consequences of the decision appear to run squarely up against its jurisprudential basis. The majority in Citizens United is saying, in effect, "The greater influence of some speakers in the market cannot be a reason for treating those speakers differently from other speakers [unless that influence is connected to the reality or appearance of corruption]." That suggests that any efforts to privilege some speakers in political campaigns, even if those efforts are speech-enhancing (such as public funding designed to support less wealthy candidates), run afoul of the First Amendment. If that reading of the majority opinion in Citizens United is accurate, the decision would appear to be based on a constitutional principle of campaign finance jurisprudence designed to have lasting effect.

There would thus seem to be a qualitative difference between Citizens United and the Court's previous campaign finance decisions since Buckley v. Valeo. Alongside Citizens United, those cases look like a judicial response to piecemeal efforts on the part of Congress to restrict campaign finance contributions or expenditures, resulting in various judicial formulas interpreting the First Amendment to preclude some efforts and permit others. It is as if in Citizens United the majority said "enough--any regulation that privileges some speakers in political campaigns at the expense of other speakers, whoever those speakers are, is unconstitutional." Of course it's clear the Court didn't mean that literally: bribery laws remain in effect after Citizens United, even if bribery is surely a form of "speech." But it's also clear that the majority wanted to categorically eliminate the "equalizing the market for campaign speech" rationale from its campaign finance jurisprudence.

Even if the above understanding of Citizens United is accurate, it may nonetheless be premature to label the decision "historic," for two reasons.

First, the Court's First Amendment jurisprudence has never been absolutist, despite the views of some individual justices. First Amendment cases involve a weighing of state interests in restricting speech, and even when the speech is in a highly protected category, sometimes the government can demonstrate a compelling interest in restricting it. So categorical propositions in First Amendment jurisprudence have typically not had a long shelf-life (consider the Court's twentieth-century "wall of separation" formulation in establishment clause cases, which has been repeatedly breached in twenty-first century decisions to permit various types of state support for religious schools).

Second, the political valence of efforts to prevent "unfairness" in the distribution of political campaign messages remains high. It is no accident that President Obama has publicly criticized the Citizens United decision. The ideal of a "level playing field" for political candidates and messages connected to campaigning is deeply entrenched in American culture (despite repeatedly being departed from). This suggests that elected officials may continue to try to find ways to circumvent or neutralize the Citizens United majority's proposition that the First Amendment does not tolerate efforts to equalize the market for speech about campaigns. I think it is far too early to say that Citizens United "ends" those efforts.

Stevens's dissent says that the decision makes a mockery of stare decisis.Does he have a point, or is that a common dissent when the Court invalidates prior case law?

As I noted previously, although in one sense Citizens United involves a more categorical statement of the First Amendment's effect on efforts to impose limitations on campaign contributions and expenditures, in another sense it can be seen as the culmination of the Court's characterization of "money as speech, and campaign money as political speech" that dates back to the 1970s. I would therefore disagree with Stevens's characterization of the decision as making a "mockery" of the practice of stare decisis. Moreover, with some rare exceptions, the doctrinal shelf-life of the Court's constitutional law decisions tends to average about twenty years, so in that respect the Citizens United majority's overruling of Austin, decided in 1990, seems right on schedule.

Citizens United  |  A Conversation with Bob Bauer '76 and Trevor Potter '82 
Citizens United Vindicates Fundamental First Amendment Principles
Some Answers from a Constitutional Perspective  |   The Supreme Court's Shift