In late October, I had the privilege of speaking at Chapman University’s Nexus Symposium on Citizens United – article to follow. For the four of you that haven’t heard, Citizens United held that corporations may use general treasury funds to finance independent communications that expressly advocate the election or defeat of a candidate – even during times proximate to the election.

The response to Citizens United has been, in my view, overstated. 

At least two members of Congress have said that it is the worst decision since Dred Scott. The equation of permitting incorporated entities to spend money to influence election with the denial of basic legal protections to an entire class of people on the basis of the color of their skin strikes me as rather substantially overwrought. While the decision certainly removed certain formal barriers to the influence of corporate dollars in federal elections, it’s doctrinal impact on corporations was rather limited. The Court’ had already held in Wisconsin Right to Life v. FEC that corporate treasury funds could be used for “issue” advocacy – defined as communications capable of no construction other than as the call for the election or defeat of a candidate.

That it is setting the limbo bar at ten feet. If a corporation could not spend money on an election after WRTL, it needed a new lawyer and a better consultant. Not surprisingly, shortly after Citizens United was decided, two prominent Democratic and Republican political operatives visited my Election Law class. Both were, it is fair to say, underwhelmed by its potential impact.

Still, I think that the opposition to Citizens United does reflect a basic philosophical disagreement about the law of political participation. A majority of the Court has decisively rejected a postion that many supporters of regulation favor. But that rejection was already clear at the time that Citizens United was decided. The critical decision was, I think, Davis. v. FEC.

Davis involved a challenge to a provision in the Bipartisan Campaign Reform Act (better known as McCain-Feingold) known as the millionaire’s amendment. Essentially, it lifted certain limitiations on campaign contributions and coordinated expenditures for those candidates facing a self-financing candidate who had spent more than a trigger amount on his or her own race. The Court struck down the amendment as an unconstitutional burden on the speech rights of the self financing canidate (on the theory that the state was “punishing” the exercise of those rights by assisting his or her opponent). 

Whatever one thinks of that, a majority of the Court in Davis made clear that the government cannot justify restrictions on campaign speech from a desire to “level the playing field” or to achieve what some commentators call “barometric equality” – the notion that financial support for candidates should reflect some apparently a priori support among the electorate.

Once this justification is rejected, restrictions must generally be justified on the basis of avoiding some form of corruption of its appearance. That strongly suggested the abandonment of the distinction between issue and independent advocacy that may turn out to be Citizen United‘s major innovation. When the problem can only be corruption, it becomes less clear to me why Microsoft’s expenditures are more problematic than Bill Gates.

This doesn’t bother me as much as it does others because I don’t have a great deal of confidence in the state’s ability to achieve “barometric equality” or to “level the playing field” in an area in which legislators are strongly self interested.  I tend to favor a Madisonian response to the problem of faction and special interests emphasizing competition over control.

While one might say that corporations present peculiar problems because of the divide betweem management and shareholders, this strikes me as a problem best addressed by disclosure. It is not clear to me, moreover, in a world in which corporations are routinely urged to – and do – spend shareholder money on the interests of “stakeholders” or “good corporate citizenship” in ways that shareholder that might raise sharp shareholder objections, why politics is unique. It’s not evident why, from the perspective of corporate democracy, contributions to Planned Parenthood or Wisconsin Right to Life are different in kind from expenditures supporting John McCain or Barack Obama.

But, in any event, I think Citizens United – or something an awful like it – flowed rather easily from WRTL – and Davis.