The most controversial Supreme Court decision of the 20092010 Supreme Court Term was, without question, Citizens United v. FEC. (1) The decision has captured the public imagination both for the question it asked and the answer it gave. In an age of much sharp political division and much incipient populism, it is easy to raise emotional flags by asking the question of whether corporations have the same rights as ordinary citizens. And it is easy for emotional involvement to turn to intense distaste in the aftermath of a decision that it is commonly thought to represent a great triumph of the conservative wing of the Court. All too many commentators, from President Barack Obama on down, have voiced their displeasure at a decision that handed corporate interests a powerful tool by which they can dominate the political arena at the expense of ordinary citizens.
Or so much of the conventional wisdom goes. In this Article, I examine the many questions that swirl around Citizens United to expose the fundamental errors of its many critics. My interest in so doing does not depend on any affection for or hostility to corporate interests. Rather I was drawn to address this case because it requires us to pull together law from a number of different areas to create a coherent analysis of the constitutionality of the statutorily created system in question. Through the course of this Article, I will explore the justifications for the Court's decision in Citizens United from both constitutional and pragmatic perspectives. On the former question, I conclude that the majority has much the better of the issue insofar as it seeks to fold issues of corporate speech into the general fabric of First Amendment law. On the latter, I conclude that from a pragmatic point of view most corporations have little desire to exercise the constitutional rights which they receive, and this for the simplest of reasons. Over a broad range of issues, business success depends on keeping a low profile in general elections. Corporations do far better to concentrate their energies on specific issues of concern to them. They become sitting ducks to the extent they choose to enter any broader political arena.
I. CITIZENS UNITED IN CONTEXT
Citizens United addressed the question of whether a corporation or a union may use general treasury funds (free of complex regulatory restrictions) to pay for electioneering communications immediately before an election, (2) (when the communications are likely to be the most salient). The Court in Citizens United invalidated the portions of the Bipartisan Campaign Reform Act of 2002 (BCRA) (3) that limited such spending. (4) The BCRA, more than perhaps any other statute, requires some predictive assessment to determine how this complex Act, if it had remained effective in its entirety, would have influenced the conduct of our political campaigns. In addition, the case came before the Court at the beginning of 2010, when the economic fortunes of a nation were uncertain at best. Recriminations have alternately laid fault for these economic woes with big business, excessive government, or some complex interaction of the two. (5) The case thus ties into the genuine struggle between the populist and market sentiments that have become ever more polarized in recent years. The BCRA has generated an enormous amount of controversy, and Citizens United clearly counts as one of the most divisive decisions of the Court in recent years.
The case did not arise in a void. Citizens United overturned portions of the earlier case of McConnell v. FEC, (6) which had followed Austin v. Michigan State Chamber of Commerce. (7) In McConnell, decided some seven years before Citizens United, Justices Stevens and O'Connor tapped into a strong strand of progressive populism when they upheld the same provisions of the BCRA. In a tribute to New York University (NYU), they noted that the great progressive thinker Elihu Root, NYU Class of 1867, had rightly said that corporate money and politics do not mix, (8) and that some effort to separate the two to reduce the effect of the former on the latter was an appropriate way to analyze the overall matter. …