Citizens United: How the New Campaign Finance Jurisprudence Has Been Shaped by Previous Dissents

Abstract:     
This article analyzes the new campaign finance jurisprudence as it relates to the independent expenditures of corporations. The primary purpose of the article is to examine the ways in which the Citizens United majority channeled the previous dissents of Justices Scalia, Kennedy, and Thomas in solidifying a new approach to campaign finance regulations that is centered on a robust protection of free speech rights. After establishing a brief background, the article first seeks to explain why the Court was correct in recognizing that the First Amendment was implicated by restrictions on a corporation’s ability to fund campaign speech. This argument relies largely on the Court’s commercial speech cases, in which the Court consistently recognizes that the First Amendment does protect (at least somewhat) the commercial speech of corporations. If purely commercial corporate speech is protected, the argument goes, then certainly political speech does not lose its protection merely because the speaker is a corporation. This part of the article also relies on longstanding First Amendment jurisprudence in addressing and seeking to discredit the argument that the First Amendment shouldn’t apply to campaign finance regulations because “money isn’t speech.”

After explaining why the First Amendment is implicated by such regulations, the analysis turns to the various ways in which Citizens United was informed by the aforementioned dissents. The analysis proceeds by discussing four separate government interests that have been asserted as justifications for the previous regulatory regime. These interests are the now-discredited anti-distortion interest recognized in Austin, the longstanding interest in preventing corruption and the appearance thereof, the interest in protecting shareholder sensibilities, and the interest in leveling the playing field so that all political speech is given an equal forum. The article explains how the Court’s treatment of each interest in Citizens United was informed by the previous dissents of those who helped to form the new majority that decided the case.

Number of Pages in PDF File: 44

Keywords: Citizens United, campaign finance

Accepted Paper Series