Friday, March 30, 2012

We the Corporations?: The Constitutionality of Limitations on Corporate Electoral Speech After Citizens United

My latest law review article, published in the University of San Francisco Law Review, is now available on SSRN here.

Here is the abstract:

Corporations are not, in fact, living, breathing human beings, and therefore should not be treated as such in the campaign finance context. While this may seem like an obvious statement and conclusion, a majority of the United States Supreme Court does not agree. In its much-maligned January 2010 decision in Citizens United v. Federal Election Commission, the Court held - in sweeping and conclusory language - that when it comes to spending money for or against political candidates, corporations should be treated identical to human beings. That conclusion is not only wrong, but is also ill-conceived.

This Article uses Citizens United as a vehicle to provide an initial look at the relationship between the theories of the First Amendment and the conceptions of the corporate form, studied through the lens of electoral speech. This Article broadly explores the interplay between the speech interests of corporations and their members in engaging in electoral speech and the different theories of the corporate personality. Against that backdrop, this Article discusses a number of reasons why - contrary to what the majority said in Citizens United - the government has a compelling interest in limiting corporate electoral speech.

In the campaign finance context, the Court should be concerned with the interests of distinct but overlapping groups - spenders' interests in speaking, the government's interest in curbing corruption and promoting speech rights, and non-spending speakers' and listeners' interests in speaking and hearing political speech. The interests of each of these groups are furthered by restrictions on for-profit corporate electoral spending.

In arguing that for-profit corporations should not be treated as identical to individuals and some non-profit corporations, this Article focuses on one type of speech by corporations - the ability of corporations to spend unlimited general treasury funds on advertisements advocating the election or defeat of candidates. The provision of federal law overturned by the Supreme Court in Citizens United addressed only this issue, but the Court made sweeping conclusions about the purported impermissibility of speaker-based identity restrictions.

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