Thursday, February 3, 2011
Richard Hasen has published "Citizens United and the Illusion of Coherence at 109 Michigan Law Review 581 (2011). Here is the abstract:
The self-congratulatory tone of the majority and concurring opinions in last term's controversial Supreme Court blockbuster, Citizens United v. Federal Election Commission, extended beyond the trumpeting of an absolutist vision of the First Amendment that allows corporations to spend unlimited sums independently to support or oppose candidates for office. The triumphalism extended to the majority's view that it had imposed coherence on the unwieldy body of campaign finance jurisprudence by excising an "outlier" 1990 opinion, Austin v. Michigan Chamber of Commerce, which had upheld such corporate limits, and parts of a 2003 opinion, McConnell v. FEC, extending Austin to unions and to a broader set of election-related television and radio broadcasts. The majority saw itself as returning the Court to the fountainhead of this jurisprudence, the Court's 1976 opinion in Buckley v. Valeo. Citizens United indisputably harmonized campaign finance law on the question of the constitutionality of spending limits on corporations, even if its view of Austin as an "outlier" remains contested. But the Court in doing so amplified and solidified other significant, incoherent aspects of its campaign finance jurisprudence.
Part I of this Article situates Citizens United in the campaign finance jurisprudence that preceded it and describes in detail the key opinions in the case. Part II explains how the Court's analysis in Citizens United is likely to lead to new incoherence in the Court's campaign finance jurisprudence, because it is unlikely that the Court will follow the new case to its extreme, for example to allow spending by foreign nationals to influence candidate elections, to treat spending in judicial elections the same way as spending for other races, or to strike down reasonable limits on campaign contributions made directly to candidates. Part III suggests that incoherence is likely to be an enduring feature of the Court's campaign finance jurisprudence, because consistent application of a coherent approach could well be politically unpalatable for majority of the Justices on the Court. It also considers the challenge such incoherence poses for lawyers arguing campaign finance cases in the Supreme Court and lower courts.
I am in a "law student" state of mind. Which means I don't feel like pondering the why's and wherefores. I just want to know whether the lobbying restrictions and campaign intervention prohibition in 501(c)(3) is constitutional? "Will it be on the exam?" Does Citizens United have more to do with those provisions than we are admitting? Surely, the issue will arise in 2012 when one side or the other intentionally violates the prohibition in an effort to force a judicial opinion on the topic.