Citizens United Is Widely Misunderstood

Welcome to the first reader-inspired edition of this regular column.

What was the inspiration? To explain briefly what the U.S. Supreme Court’s widely misunderstood decision in Citizens United v. Federal Election Commission does and doesn’t do.

Let’s back up. Political-speech law comes in two types.

One type bans or otherwise limits political speech.

The other regulates – that is, requires disclosure of – political speech. Disclosure may constitutionally proceed on two tracks.

Under Track 1, government may trigger political-committee burdens for organizations meeting particular criteria. Such burdens can include registration, recordkeeping, extensive reporting, and ongoing reporting.

Under Track 2, government may require less burdensome, non-political-committee disclosure for particular speech.

Citizens United has two sets of political-speech-law holdings.

One set upholds Track 2 disclosure requirements for particular speech. This doesn’t change constitutional boundaries around government’s power to trigger Track 1 burdens.

Why are such boundaries important?

One reason is that law triggering Track 1 burdens beyond constitutional boundaries can chill political speech.

Unless, for example, speakers can afford to hire professionals to help them comply with such law.

When that happens, such law in effect shuts little players out of – and leaves big players with less competition in – the marketplace of ideas.

As this columnist wrote in 2016, the most insidious aspect of such law is that it protects big players at little players’ expense. That’s what those advocating or defending such law are in effect doing.

They’re in effect protecting the 1 percent.

Although big players and little players have the same First Amendment rights, the former have no right to political-speech law protecting them at the latter’s expense.

The other set of Citizens United holdings is different.

Under this set, the only constitutional justification for banning or otherwise limiting political speech by non-foreign nationals is the prevention of quid-quo-pro corruption, or the appearance of quid-pro-quo corruption, of candidates or officeholders.

Independent spending for political speech is independent of, and not coordinated with, candidates or officeholders, so Citizens United holds such spending can’t cause such corruption or its appearance.

Thus, government may not ban or otherwise limit such spending by non-foreign nationals. Under Citizens United, the fact that a speaker is incorporated doesn’t change this.

The law at issue in Citizens United bans domestic corporations and domestic unions from engaging in particular independent spending for political speech. After Citizens United, such bans are unconstitutional.

Misunderstandings of this part of Citizens United abound. For example, it doesn’t:

¯ Address the constitutionality of law banning or otherwise limiting other independent spending for political speech by domestic corporations or domestic unions.

Such bans and such limits were unconstitutional before Citizens United. They still are.

Does Citizens United reinforce those points? Yes, but such bans and such limits were already unconstitutional.

¯ Support anonymous speech.

If domestic corporations or domestic unions engage in political speech, disclosure law can apply, as it can when others engage in political speech. However, such law must be constitutional.

¯ Apply to foreign nationals, such as foreign corporations or foreign unions.

¯ Address the constitutionality of law banning or otherwise limiting contributions received from non-foreign nationals for independent spending for political speech in which the contributor and the speaker have a First Amendment right to engage.

Such bans and such limits were unconstitutional before Citizens United. They still are.

Does Citizens United reinforce those points? Again, yes, but such bans and such limits were already unconstitutional.

¯ Address law banning domestic corporations or domestic unions from making contributions other than for independent spending. These include, for example, contributions to candidates.

Citizens United may or may not undermine previous Supreme Court opinions upholding such bans.

Yet since Citizens United, no appellate court has held such bans unconstitutional.

Even if such bans were held unconstitutional, that wouldn’t mean such corporations or such unions could make such contributions without limit.

Why? Because constitutional limits on such contributions would still apply. Such limits can be constitutional when such bans aren’t.

Randy Elf is the author of a 2016 Regent University Law Review article on the constitutionality of law regulating political speech. The article is at http://www.regent.edu/acad/schlaw/student–life/studentorgs/lawreview/docs/issues/v29n1/10–Elf–vol–29–1.pdf.


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