A Right but Wrong Place: Righting and Rewriting Citizens United

By Lloyd, Harold Anthony | South Dakota Law Review, Summer 2011 | Go to article overview

A Right but Wrong Place: Righting and Rewriting Citizens United


Lloyd, Harold Anthony, South Dakota Law Review


   I. INTRODUCTION
  II. CITIZENS UNITED AND ITS "DOCUMENTARY"
 III. CORPORATE CONSTITUTIONAL RIGHTS: THE
      CONSTITUTIONAL TEXT
  IV. THE PEOPLE'S RIGHT TO FREE SPEECH
   V. THE PEOPLE'S RIGHT TO A FUNCTIONAL GOVERNMENT
  VI. DEMANDING NO DIMINISHMENT
 VII. RECONCILING RIGHTS: REWRITING CITIZENS UNITED
VIII. CORPORATE MEDIA: SOME BRIEF CLOSING THOUGHTS
  IX. CONCLUSION

I. INTRODUCTION

Acme Drilling Corporation has ten billion dollars in its treasury. Its president calls several senators and tells them that he is concerned about drilling safety regulations pending in Congress. He then dines with a member of his elected state supreme court. At the meal, he talks at length about the abusive number of employee class certifications upheld by that court. No money ever exchanges hands but the senators and the court "reform" their ways. No money need exchange hands because the elected officials know what will be unleashed against them if they do not "reform." Acme Corporation has thus disproved the ancient commonplace that one cannot have one's cake and eat it, too. It has used ten billion dollars of influence without spending a cent and joins Citizens United in a new corporate wonderland.

II. CITIZENS UNITED AND ITS "DOCUMENTARY"

Citizens United, a non-profit corporation wished to make its "documentary" about Hillary Clinton available on cable television within thirty days of primary elections. Citizens United accepted funds from both individuals and from for-profit corporations and presumably planned to use these funds, at least in part, to fund the Hillary "documentary." (1) However, both before and after the Bipartisan Campaign Reform Act of 2002 ("BCRA"), federal law prohibited corporations and unions from using their general treasury funds to make direct contributions to candidates or to make independent expenditures expressly advocating, through any form of media, the defeat or election of a candidate in certain federal elections. (2) BCRA subsequently amended such federal laws to prohibit corporate and union "electioneering communications." (3) For such purposes, however, corporations and unions could establish a separate segregated fund, commonly called a political action committee ("PAC"), whose segregated funds are limited to shareholder and employee contributions "or, in the case of unions, members of the union." (4) BCRA also required a disclaimer for "televised electioneering communications funded by anyone other than a candidate." (5) The disclaimer for the Hillary documentary would substantially be provided as "[Citizens United] is responsible for the content of this advertising." (6) BCRA further mandated that the statement be read "in a 'clearly spoken manner' and displayed on the screen in a 'clearly readable manner' for at least four seconds." (7) When Citizens United sought declaratory and injunctive relief prior to airing the Hillary "documentary," the district court denied Citizens United's motion for a preliminary injunction and granted the Federal Election Commission's motion for summary judgment. (8)

Declining to decide the case on narrower grounds and resurrecting a facial challenge that Citizens United had waived, (9) the majority held that both for-profit and non-profit corporations have First Amendment rights to expend unlimited amounts of shareholder, and presumably creditor, funds in political contests.

The Court's ruling left intact, at least for now, the Constitutionality of restrictions on direct campaign contributions. (10) The majority, over the dissent of Justice Thomas, also expressly affirmed the Constitutionality of BCRA's disclaimer provisions. (11)

These two "saves," however, hardly offset the damage done by Citizens United. The Court effectively freed corporations to peddle limitless influence at all levels of our representative government. (12) Given the high stakes involved, I suggest that we take a fresh look both at the plain language of the Constitution and at our founding documents, re-embrace them, and find a more reasoned approach. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Note: primary sources have slightly different requirements for citation. Please see these guidelines for more information.

Cited article

A Right but Wrong Place: Righting and Rewriting Citizens United
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen
Items saved from this article
  • Highlights & Notes
  • Citations
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Search by... Author
    Show... All Results Primary Sources Peer-reviewed

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.