Wednesday, January 26, 2011
In a 5-4 opinion, decided January 21, 2010, Citizens United struck down § 203 of the Bipartisan Campaign Reform Act of 2002 which prohibited corporations and unions from using general treasury funds for “electioneering communications” – defined as broadcast, cable or satellite communications that are publicly distributed, within 30 days of a primary election and 60 days of a general election, and advocate for or against a particular candidate in a federal election. This Essay analyzes Citizens United through two lenses – constitutional law and corporate law. It suggests that while the majority’s opinion is breathtaking as a piece of constitutional law, it is actually unremarkable when considered as a narrative in corporate law.
The argument is structured into two principal sections. Part I argues that the opinion is truly unusual from a constitutional perspective. To begin with, it eschews the principle of constitutional avoidance, refuses to consider § 203 as a time, place and manner restriction, and pays precious little attention to stare decisis. Beyond these technical concerns, the majority’s opinion presents deeper constitutional issues: its bold rhetoric is divorced from First Amendment doctrines, other relevant constitutional provisions are ignored, and untested assumptions are proffered about money and speech, corruption, and corporate constitutional rights. By contrast, Part II suggests that the opinion is entirely unremarkable when viewed through the narrative of corporate law. By giving corporations the ability to use general treasury monies to fund political speech, the majority in Citizens United is privileging a class of corporate insiders in a manner consistent with corporate doctrines such as the business judgment rule. Moreover, the opinion’s depiction of voters as autonomous, rational, well-informed participants in political discourse has striking parallels to the manner in which corporate law idealizes shareholders.
The full text is not available from SSRN.