Naturalizing the Artificial Citizen: Repeating Lochner's Error in Citizens United v. Federal Election Commission

Abstract

In March, the Supreme Court of the United States, in a 5-4 vote, handed down Citizens United v. Federal Election Commission, a sweeping ruling providing more protection for corporate political media spending as First Amendment “speech” than ever before. This article demonstrates that Citizens United nullified a century of democratic will by representing First Amendment protection for such spending to be part of nature rather than a legal construct. If Cass Sunstein's influential assessment is correct that the lesson of Lochner v. New York is the judicial error inherent in imposing such artificial baselines to measure the constitutionality of government regulation, then Citizens United can be understood to repeat that error.