Legal Commentary

I don't teach or write (or, frankly, know much of anything about) corporations and business organizations. So read this in that light. But Citizens United triggers a number of corporations issues (some of which Matt already touched on).

First, it seems that there is a public and political misconception about what a corporation is. Too often, we only think of GM or IBM or other big-businesses, ignoring smaller corporations and, in particular, not-for-profit corporations, including political advocacy groups. The latter serve, at least in part, as a means for individuals to aggregate their voices (and the resources they can expend on expression) and thus the reach and power of their message; de Tocqueville recognized the importance of voluntary associations as an integral part of American society. Thus the phrase "corporate special interests" that routinely gets thrown around becomes another empty political epithet. GM, Disney, Delmar Contracting, Inc. (they just redid my kitchen), the ACLU, and WRTL all are corporations with political interests--I hardly would group them together. Obviously the target of campaign finance reform is GM; but you cannot necessarily regulate it without regulating other corporate speakers.

Second, the floodgates concerns that many (especially President Obama and congressional Democrats) have been raising seem misplaced. The Court left in place the basic distinction between independent expenditures and contributions and the latter are still more limited than the former, although mitigated by "soft money" to political parties. So this case is not going to create some new level of corporations buying politicians--the connection is not necessarily there between the corporation and the candidate. It will create a new level of corporate-funded ads, movies, and other speech--but that does not strike me as a bad thing. In any event, corporations already get into bed because candidates are so dependent on contributions which, though limited, are still substantial in amount. Citizens United did not make that situation better or worse.

Third, going off something Matt argued: Are businesses (especially large GM/Disney/Eli Lilly types) going to engage in candidate electioneering (as opposed to issue advertising)? I can see Eli Lilly spending money to stop health-care reform (which is in its business interests); I cannot see it spending money regularly to elect anti-reform candidates in multiple congressional races. Especially in the face of objections from shareholders.