Citizens United and the Paradox of “Corporate Speech”: From Freedom of Association to Freedom of The Association
Money is necessary to exercise some constitutional rights; for example, getting an abortion requires cash. In this article,
Deborah Hellman asks: when do constitutionally protected rights include an accompanying right to spend or give money?
Based on a thorough analysis of Supreme Court cases, Hellman offers an underlying principle that explains when a constitutional right includes a concomitant right to give or spend money. Constitutional rights are divided into two types: those that have a concomitant right to give or spend of money, and those that do not have such a concomitant right. Hellman describes the former category as an “integral” approach and the latter as a “blocked” approach.
In Hellman’s view, the Supreme Court has established an integral approach when no adequate alternative means exists to exercise that right. In contrast, most of those Supreme Court cases that have established a blocked approach have done so because there is an adequate alternative mechanism to exercise the right.
In this article, Hellman calls upon us to challenge our understanding of the relationship between money and constitutional rights. In doing so, she determines that Citizens United may have been wrongly decided because the public campaign finance system provides an adequate alternative mechanism to private political contribution.
Mark C. Alexander
In this article, Alexander examines the Supreme Court’s decision in Citizens United, which treats campaign spending by corporations as political speech deserving of strong protection under the First Amendment. Alexander argues that this approach creates a form of vote dilution wherein wealthy individuals and powerful corporations exert a disproportionate amount of control over politics, implicating constitutional concerns under the Guarantee Clause. Furthermore, candidates and elected officials spend an increasing amount of time and energy on campaign fundraising, detracting from their responsibilities as representatives of the people. Alexander argues that freeing up the time of elected officials should be considered a compelling interest and therefore be given weight in the constitutional calculus.
This article explores the reasoning in the Citizens United decision and the history of campaign finance jurisprudence and argues that the Court can remain faithful to the First Amendment without overlooking the danger of debate distortion and vote dilution.