Monday, January 27, 2014

Why Lawyers and Non-Lawyers React Differently to Citizens United

As Anne Tucker noted, last week was the fourth anniversary of the Supreme Court’s Citizens United decision, striking down as unconstitutional a ban on electioneering expenditures by corporations.

I don’t want to discuss the merits of that decision. I’m not a constitutional expert and many people much more qualified than I have chimed in. Instead, I want to talk about the public reaction to the decision. In my (admittedly limited) experience, non-lawyers react to Citizens United very differently from lawyers.

The Reaction of the Lay Public

The reaction of many non-lawyers is, “Are you nuts? Only people have constitutional rights and corporations aren’t people.” The mere idea that corporations should be treated like natural persons with similar constitutional rights is both hilarious and outrageous. Corporations aren’t people, and only an idiot would think otherwise.

The Reaction of Lawyers

The reaction of many lawyers is quite different. (I’m excluding those lawyers who appear as pundits on talk shows and are expected to overreact.) Many lawyers disagree with the Citizens United decision, but most lawyers don’t consider the idea of giving corporations the same rights as natural persons as completely beyond the pale of reason. The focus of the debate among lawyers is more on whether corporations should have the particular legal right at issue in Citizens United.

Corporations are Often Persons in the Law

The reason for the difference, I think, is that lawyers and law students are bombarded with instances of corporations as persons. It’s second nature to us. Look in the definitions section of almost any statute. It’s hard to find a statute that does not define the term “person” to include corporations. In the law, corporations are often treated as persons, with the same legal rights and obligations as natural persons.

Citizens United, in a broad sense, is just another example of that common legal concept of personhood. Because of that, although lawyers may think the Citizens United decision is bad policy or bad constitutional law, the reaction of most lawyers isn’t quite as derisive as some of the lay reaction.

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