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Two notes on Citizens United

By Jack M. Balkin

I much admire Ian Ayres and Bruce Ackerman, but I can't imagine that their proposal would survive the current majority, for it is almost a textbook example of an "unconstitutional condition." Most liberals would be appalled if a conservative Congress tried to place such conditions on everyone who received some kind of federal aid and then said "well, you can always reject the aid." (Recall the huge controversy over the distribution of NEA funds., or requiring everyone who received federal aid to register for the non-existent draft.) One can, of course, readily agree that the Supreme Court got it wrong, even disastrously wrong, in Citizens United, but the rhetoric of Anthony Kennedy's majority opinion is a Hugo Black-like veneration for the text of the First Amendment and the illegitimacy of the state picking and choosing among "proper" speakers. Indeed, as someone who spent many years under Black's spell, I believe there is a real power to the argument, even though, at the end of the day, I would distinguish between "natural persons" and non-media-related corporations. (Would Ackerman and Ayres apply their suggestion to natural persons or partnerships who contracted with the US?)

I confess I am disturbed by President Obama's using the possibility that Citizens United protects "foreign corporations" as a battering ram (even though I am quite happy with his calling out the Supreme Court). Why shouldn't foreigners be entitled to contribute to the electoral dialogue? If one believes, as in the 1960s, that one ought to have some say with regard to decisions that concerns one's own life, then it is obvious beyond dispute that decisions made by the US government affect the lives of people all over the world. So long as there is adequate disclosure, why shouldn't foreigners have the same rights to weigh in on the merits of candidates as nationals? Indeed, would "we" (whoever "we" exactly are) really support limiting participation, and not only voting, in US elections to citizens? The answer, I hope, is absolutely not.

FURTHER COMMENT: The distinction between a "natural person" and a "corporation" allows bright-line application, even if it leaves us having to decide whether "limited liability partnerships" are closer to the former or the latter. There is, I suggest, no similar bright line as between an "American" and a "foreign" corporation, unless we go by the sheer formality of place of incorporation. But, obviously, many shareholders of "American" corporations are foreigners, and I assume the converse is true of "foreign" corporations, especially as sophisticated investors diversify their portfolio by investing in international mutual funds and the like. One might recall early attempts by the Supreme Court to figure out how to interpret "diversity" for jurisdictional purposes and whether it would require actually determining out who the shareholders of a particular company were (so that if even one shared the state of an opposing litigant, there was no diversity). Ultimately, the Court did settle on a wholly formal state-of-incorporation test. But the real point has to do with whether we should be so adamant about "protecting" the American political dialogue from ostensible "pollution" by hearing what outsiders have to say about our candidates. It is, of course, especially ironic that the United States would be so adamant given our repeated practices, over many years, of intervening in all sorts of ways in the politics of foreign nations.

Full post as published by Balkinization on January 31, 2010 (boomark / email).