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Session Summary: Should Citizens United be Overruled?

Summary Provided by Lou Virelli (Stetson University Law School)

WORKSHOP ON CONSTITUTIONAL LAW: Should Citizens United Be Overruled?

This panel featured four election and constitutional law experts discussing a question of particular importance in this era of heightened public focus and concern over elections: should the Supreme Court’s 2010 decision in Citizens United be overruled?

Professor Michael Dimino (Widener University Commonwealth Law School) began the discussion by providing a summary of Citizens United and its ancestors.  He discussed the Court’s history of dealing with restrictions on campaign spending, including its rationales in Buckley v. Valeo and Austin v. Michigan Chamber of Commerce.  He went on to argue that he sees Citizens United as a close case, and thus does not believe it meets the standard for being overturned by the Court.  He used two examples from the Fifth Amendment to illustrate the point that corporations are neither the same as individuals nor entirely different for constitutional purposes; the right against self-incrimination, which applies to people and not corporations, and the Takings Clause, which protects individuals and corporations alike from uncompensated government takings.  He pointed out that corporations have been recognized as having First Amendment rights in cases like New York Times v. Sullivan, and that since there is no distinct free speech doctrine protecting either the press or media corporations differently from individuals, he argued that it becomes too difficult to draw distinctions that would have allowed the Court to single out the activity at issue in Citizens United without having wider-ranging effects on First Amendment law.  Professor Dimino explained that he views Citizens United as an unconstitutional conditions case, asking the question whether the government can restrict speech in exchange for the limited liability protections associated with incorporation.  He suggested that, under such an approach, Citizens United could have been decided for the government to the extent the case only restricts money that receives the benefits of incorporation.  He concluded by reiterating that although he thinks there may be an argument that Citizens United was wrongly decided, it was not so wrong as to justify being overruled.

Professor Bradley Smith (Capital University Law School) started his presentation by offering several statistics in support of his position that Citizens United did not have a significant practical impact on election spending.  He pointed out that prior to Citizens United, corporations could finance unlimited issue advertisements and twenty-six states allowed unlimited funding in state elections.  He described Citizens United as a reaffirmation of First Amendment principles, citing the fact that none of the Justices argued that the speech at issue in the case was not protected speech.  He described the case as turning on the strength of the government’s arguments about the compelling need for campaign spending restrictions, and agreed with the majority that the governments’ arguments did not carry that burden.  While he noted that there might be valid policy arguments against the Court’s opinion in Citizens United, he maintained that they cannot overcome the Court’s constitutional conclusion under the First Amendment.  In terms of overruling Citizens United, Professor Smith argued that overruling the decision would have more serious consequences than the decision itself because doing so would contribute to what he described as an ongoing aggressive philosophy threatening free speech, including the political speech at the heart of the First Amendment.

Professor Ciara Torres-Spelliscy (Stetson University College of Law) introduced her presentation by recognizing that the current Court is unlikely to overturn its decision in Citizens United.  Notwithstanding that fact, she offered a list of reasons why she believes the case was wrongly decided and should be reversed.  She argued that an election should not be treated as a marketplace and that money should not be treated as speech.  She criticized the Court’s treatment of the corporation in Citizens United as a constitutional person, and noted that the relevant precedents—McConnell v. FEC and Austin v. Michigan Chamber of Commerce—did not support the Court’s conclusion in Citizens United.  She reminded us that the parties in Citizen United were not pursuing a facial challenge to the statute and explained that a remand for further treatment by the lower courts would thus have been more appropriate.  She challenged the Court’s conclusion in Citizens United that independent (as opposed to direct and personal) campaign expenditures in support of candidates cannot be corrupting as absurd and offered two alternative grounds for upholding the statute at issue in the case:  fashioning a potential carve out for feature-length films, which was the source of the spending at issue in Citizens United, and expanding an exception articulated by the Court in FEC v. Massachusetts Citizens for Life for spending by certain political nonprofits.  Lastly, she pointed out the federalism costs of the Court’s decision, explaining that it invalidated not only federal campaign spending limits, but also similar limits in more than twenty states.  Professor Torres-Spelliscy concluded by offering her own view for how to counteract the effects of Citizens United.  She suggested looking to corporate law practices to promote transparency in campaign spending.  She advocated for requiring public corporations to disclose their campaign spending to their shareholders, something they are not required to do after Citizens United but that is common practice in other large democracies like the United Kingdom.  A lack of transparency, Professor Torres-Spelliscy explained, could lead to more problems, like those associated with alleged Russian interference in the 2016 presidential election.  The ability of corporations to hide or conceal funding sources could, she argued, offer easier avenues for foreign operatives to influence our elections.

Professor Josh Douglas (University of Kentucky College of Law) agreed with the other panelists that he did not think the current Court was likely to overrule Citizens United.  He stated that he thinks the bigger “problem” in the Court’s election law jurisprudence lies with its decision in Buckley v. Valeo.  He identified three shortcomings of Buckley that he thinks are important obstacles to overruling Citizens United and reforming election law.  He objected to the Court’s decision in Buckley to treat money as speech, to limit the definition of corruption to a direct quid pro quo exchange of money for a tangible benefit, and to prohibit the government from regulating to create a level playing field in terms of money and politics.  He explained that he sees dealing with these weaknesses of Buckley as necessary to ultimately overruling Citizens United.  But Professor Douglas’s focus was not necessarily on the Court or even federal law.  He advocated for renewed focus on local laws to regulate elections.  He pointed out that the Court, Congress, and Republican-controlled state governments are unlikely to pursue changes to Citizens United or the current state of federal election law, but expressed optimism about local governments’ ability to serve as laboratories of election reform.  He cited ongoing campaign- finance-reform efforts in San Francisco, Seattle, and counties in California, Maryland, and Oregon as examples of the potential for local governments to lead the way for changing the role of money in politics.

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