No Middle Ground? Reflections on the Citizens United Decision

Abstract

My interest in this brief essay is to explore precisely what the Court decided in Citizen’s United and the constitutional basis upon which the decision rests. I will turn first to the Kennedy opinion, its broad holding that corporations are first amendment speakers, its logical consequences, and the analytical problems under the First Amendment and Supreme Court doctrine that Kennedy basically ignored. I will then turn to the Scalia opinion and its significance for first amendment theory and doctrine. Finally, I will make the claim that Justice Scalia’s opinion is, for analytical purposes, the governing opinion. At least this is so on all of the “holdings” in the Court’s opinion that Justice Kennedy’s style of decision unnecessarily (in terms of Justice Scalia’s reasoning) reached out to announce. These broad holdings are the very basis upon which the controversy about the decision has rested.

Keywords: Constitutional Law, Supreme Court, Free Press, Free Speech, corporations, election laws, First Amendment