Dividing 'Citizens United': The Case v. The Controversy

Abstract

In the five years since "Citizens United", that notorious and much-misunderstood Supreme Court decision has become more than just a case: it has become a symbol, a rallying cry. For some, it is an emblem of free speech values at their best. For others, it is a symptom of a deep sickness in our body politic. But we should not forget that it was a case first, with a plaintiff who wanted to distribute a political movie and was told "no."As a case dealing with a particular controversy over a proposed publication, I believe "Citizens United" was rightly decided, for the reasons I discuss in Part I, even if it was resolved in a way that was symptomatic of judicial overreach all too common on the current Court. But as a symbol and a symptom, "Citizens United" has broader significance reflected in the Court's eventual opinion. It represents a bizarrely cramped and naive vision of political corruption and improper influence in the electoral process — one that has become characteristic of Roberts Court campaign finance law. And, more broadly, it is part of a trend in First Amendment law that is transforming that body of doctrine into a charter of largely untrammeled libertarianism, in which the regulation of virtually all forms of speech and all kinds of speakers is treated with the same heavy dose of judicial skepticism, with exceptions perversely calculated to expose particularly vulnerable and valuable sorts of expression to unconvincingly justified suppression. It is those trends, rather than the outcome of "Citizens United" as applied to the facts before the Court, that need to be revisited. Part II provides a first cut at rethinking campaign finance law. This effort is informed by the recognition that there are few if any easy answers in this field. The First Amendment requires hard choices about seriously conflicting yet equally foundational constitutional values: democracy, liberty, equality. Each one of these values is contested; no single value or theory can or should reign supreme. But, as I strive to show, the Supreme Court has started to privilege — throughout First Amendment law — an overly skeptical and distrustful understanding of democracy and a too rigid and mechanical approach to liberty, leaving equality increasingly out of the picture. I believe the Court would do well to rethink that approach.