Nonsense and Worries in Citizens United and Its Aftermath

Abstract

Do Corporations have a constitutional right to donate money to organizations that engage in electioneering? The US Supreme Court has recently decided that they do. Citizens United v. Federal Election Commission held that restrictions on a corporation’s expenditures for “electioneering communication” or other speech that advocates the election or defeat of a candidate were unconstitutional under the First Amendment of the US Constitution.This case has generated an enormous commentary in the legal literature, much of it quite critical of the opinion. Most of the critical commentary has emphasized two bad results that are claimed to flow from the decision. First, these commentators have presumed that, as result of Citizens United, the floodgates will be opened, sending a torrent of corporate money gushing in and elections will come to be, in substance, more like auctions than democratic choices. Second, many have been quite concerned that the corporate origins of all this money make it much more destructive to the political process. Part 2 of this essay will discuss why these arguments are overblown and unpersuasive. The floodgates were already open, and the problem is large amounts of money coursing through the political process which has been subject to little effective control for some time. The money, not its corporate origin, is the real concern. (Many of the commentators have emphasized technical points of Constitutional Law and traditional ideas of good practice in constitutional interpretation, topics that are beyond the scope of this essay.)Yet there are real worries that grow out of this case, and Part 3 will survey these. Citizens United is less of concern for what it actually commands in this opinion, but, if it is seen as a major step in a continuing journey, it is of much more concern for what it shows about where the journey is going.