Originalist or Original: The Difficulties of Reconciling <I>Citizens United</I> with Corporate Law History

Abstract

INTRODUCTION Much has and will continue to be written about the United States Supreme Court's decision in Citizens United v. EEC. (1) In that decision, the Court held that the part of the Bipartisan Campaign Reform Act of 2002 (the McCain-Feingold Act) that prohibited corporations from making expenditures expressly in favor of the election or defeat of political candidates, except through corporate-sponsored political action committees that raised specific funds for that purpose, was unconstitutional as applied to the nonprofit advocacy corporation before the Court. (2) In its sweeping ruling, the Court suggested that the managers of even for-profit corporations whose shares are publicly traded have a First Amendment right to spend unlimited amounts of treasury funds to influence the political process, including to advocate the election or defeat of particular candidates for office. In this Article, we focus on a specific question raised by Citizens United, which is whether the Supreme Court's decision can be justified solely by application of the originalist method of constitutional interpretation, or whether it can only be explained by giving substantial weight to a more modern, evolved understanding of the relevant constitutional provisions. The dissent in Citizens United, authored by Justice Stevens and joined by Justices Ginsburg, Breyer, and Sotomayor, argued that the decision could not be defended on originalist grounds. Injustice Stevens's view, the Framers little trouble distinguishing corporations from human beings, and when they constitutionalized the right to free speech in the First Amendment, it was the free speech of individual Americans that they had in mind. (3) In a concurring opinion, originalist Justice Scalia, joined by Justice Alito and in relevant part by Justice Thomas, claimed that the majority's result was faithful to originalism as they articulate it. (4) Justice Scalia argued that there was no historical evidence that the government could restrict the speech of business corporations. In addressing this subject, we acknowledge that Justices Scalia and Alito concurred in the majority opinion, an opinion that itself did not rely upon the originalist methodology, and that the originalist concurrence was crafted as a rebuttal to Justice Stevens's dissent, which argued that the majority opinion was unhistorical. Nevertheless, because Justices Scalia and Thomas, and originalist methodology, have such influence in current jurisprudence, we believe it is important to consider whether Citizens United can be rationalized on originalist grounds. After all, originalists claim that their method is the only method faithful to the idea that the law is something determinable as the work of certain legitimately empowered authorities, and not whatever the current group of judges decides to say it is. Originalism is an interpretive doctrine commonly associated with those who describe themselves as conservative. (5) In a prior article, we discussed whether Citizens United, usually seen as a product of the wing of the Supreme Court, could be reconciled with the predominant conservative corporate law theory, and found that it could not. (6) In this Article we explore whether the outcome in Citizens United can be justified by reference to the originalist interpretive principles as embraced by Justice Scalia and other prominent conservatives. (7) Originalist interpretation, as applied by Justice Scalia, entails a two-pronged approach. (8) In the first instance, if the constitutional text is unambiguous and answers the question posed, the Court must give the text its unambiguous meaning. If, however, the text is ambiguous or does not directly address the question before the Court, then the Court is to do its best to interpret the text consistently with the understanding at the time of its adoption. Contemporaneous societal understanding is therefore what is relevant to originalists such as Justice Scalia, who eschew the notion of a living constitution whose meaning changes by virtue of changing societal norms and judicial interpretations rather than changes to constitutional text. …