The Intellectual Forebears of Citizens United

NEXUS, Vol. 16, p. 113, 2010-2011

Chapman University Law Research Paper No. 11-24

9 Pages Posted: 9 Aug 2011

See all articles by Ronald D. Rotunda

Ronald D. Rotunda

Chapman University, The Dale E. Fowler School of Law

Date Written: August 9, 2011


Before Citizens United v. Federal Election Commission (2010), federal law banned “political speech” that aired too close to the election. The Court invalidated that stature in Citizens United, holding that the Federal Election Commission cannot constitutionally ban political speech just because it is close to an election and the speaker is incorporated. In the first oral argument before the Court, the Deputy Solicitor General argued that the statute authorized the government to ban corporations from publishing books that supported the election or rejection of a political candidate. In the second oral argument, Solicitor General Kagan argued that it was not constitutional for the government to ban books but it could ban pamphlets!

The Court disagreed and, in so doing, followed in the footsteps of a long line of commentators. President Truman, in vetoing the Labor Management Act of 1947, said it was unconstitutional to prohibit corporations and labor unions from engaging in independent expenditures in political campaigns. He warned, this ban was a “dangerous intrusion on free speech.” Later, in United States v. CIO (1948), Justices Black, Douglas, and Murphy joined Justice Rutledge, concurring in the result, argued that a ban on independent expenditures by individuals or groups violated free speech. And, in United States v. Automobile Workers (1957), Justice Douglas, joined by Chief Justice Warren and Justice Black, specifically objected to the argument that the Government can restrict the independent expenditures or speech of any group, “labor or corporate,” because the group is too powerful.

It in inevitable that money will flow into political campaigns: indeed, economic studies wonder why the major players do not invest more in campaigns, given that so much money rides on the outcome. Politicians routinely enact laws that take money from the pocket of Peter and put it into the pocket of Paul. As long as Government has such sway over our pocketbooks, unions, business, tort lawyers, and other interest groups will spend money to get their friends elected. Political campaigns engage in rent-seeking in spades. Citizens United will not change that.

Keywords: campaign finance, campaign reform, rent-seeking, free speech, Citizens United, elections

JEL Classification: D72, H50, H70, K20, K29, K39

Suggested Citation

Rotunda, Ronald Daniel, The Intellectual Forebears of Citizens United (August 9, 2011). NEXUS, Vol. 16, p. 113, 2010-2011; Chapman University Law Research Paper No. 11-24. Available at SSRN:

Ronald Daniel Rotunda (Contact Author)

Chapman University, The Dale E. Fowler School of Law ( email )

One University Drive
Orange, CA 92866-1099
United States


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