Nonparticipatory Association and Compelled Political Speech: Consent as a Constitutional Principle in the Wake of Citizens United


In Citizens United, the Supreme Court put nonparticipatory association and compelled political speech at the heart of campaign finance jurisprudence. In its zeal to abolish distinctions between natural persons and corporations in campaign finance law, the Court amplified the political speech rights of corporations and constrained the associational and political speech rights of the shareholders and members who form and fund corporations.

Before Citizens United, federal election law prohibited the use of corporations’ general treasury funds for independent expenditures that expressly supported or opposed the election of clearly identified candidates for public office. The only way for a corporation to expressly support candidates was through the corporation’s political action committee (“PAC”). In effect, federal election law operated as a clause in corporate articles or bylaws that protected shareholders and members from managerial discretion in using corporate assets to support or oppose political candidates through independent expenditures. Citizens United removed this implicit term from the articles or bylaws of every corporation and association in the country and thereby changed the relationship between organizations and their members. Following Citizens United, independent expenditures that expressly advocate the election or defeat of a particular candidate may be funded directly from a corporation’s general treasury. Members and shareholders have no effective means of consenting or not consenting to the decisions made by organization managers with respect to the use of general treasury funds.

The changes Citizens United made to the terms of association are profound for shareholders or members who affiliated with an association for purposes other than political expression. An individual who buys stock in a business corporation is likely to have made the investment for the straightforward purpose of earning a return on the investment, not for the purpose of supporting or opposing a particular candidate. An individual who makes a contribution to a tax-exempt entity may be presumed to have done so to support the organization’s exempt purpose, whether to protect the environment, maintain a local park, or improve conditions in the local business community. These shareholders and members now find that virtually all associations can allocate organizational resources to supporting or opposing candidates in election campaigns, regardless of whether the candidates’ positions are consistent with the exempt activity of the organization or the commercial activities of the business corporation.

These changes are also profound for members who did affiliate with an association for the purpose of political expression, but not necessarily for the purpose of supporting or opposing particular candidates. It is entirely possible to support a cause and to pay dues or make contributions to support legislative lobbying or issue advertisements without wanting to support or oppose particular candidates for public office, or even wanting to support any candidates at all. An association may be devoted to a single cause, or even to a single approach to a single cause, but a candidate necessarily takes positions on many issues. Even a strong supporter of a particular cause may not attract the votes of ardent supporters of that cause if those supporters object to the candidate’s position on other issues. In order to understand the nature of compelled political speech arising from this change in the terms of association, it is necessary to remember that the choice a given voter makes about which candidate to vote for-or even whether to vote at all-is a highly complex decision made by individual voters in different ways, weighing different factors.

Citizens United is thus an important case in the jurisprudence of association.Members and shareholders will now find that the money they contributed to, or invested in, an organization is being used to finance political speech with which they may not agree. The majority opinion does not address this change in the scope of managerial discretion as an element of the right of association. Instead, it treats corporate decisions relating to political speech as indistinguishable from other corporate decisions over which corporate managers exercise control. The Citizens United majority thus ignored the role of member and share holder consent in organizations’ decisions relating to the use of general treasury funds to finance independent expenditures. Political speech has become another area of nonparticipation in organizational decision-making, and the resulting speech is a form of compelled political speech from the perspective of shareholders.

Citizens United is also important for the jurisprudence of association because of what the Court did not do. The Court in Citizens United never paused to consider whether nonparticipatory association was consistent with the FirstAmendment values they claimed to be protecting. The Court never asked whether the shareholders and members should be considered speakers with protected First Amendment rights. It did not locate the First Amendment in theConstitution, and did not understand the Constitution as a document intended to establish a legitimate government based on consent. It did not consider the implications of nonparticipatory association and compelled political speech for the rights of individuals as voters. The Court never stopped to consider whether its decision might have implications for the nature of the relationship between voters and elected representatives.

The Citizens United majority was able to ignore the need for consent by association members while enhancing the control of organizational managers because the jurisprudence of association currently does not acknowledge and protect both the rights of the association and the rights of those who associate.Any theory of association consistent with the constitutional principle of consent should consider associations as both entities and aggregates. It should grapple with a range of difficult questions about the entity itself and the aggregate character of associations. Does the association’s right of political speech derive from the First Amendment rights of its members? Or do organizations enjoyFirst Amendment rights of political speech wholly separate and independent from those of its members? Do individuals have their First Amendment rights of political speech diminished by the act of joining an association? What are the means through which members can express consent to the role of associations in campaign finance?

This Article suggests that the implications of Citizens United for the jurisprudence of association become clearer and more concrete if one treats consent as a constitutional principle. Treating consent as a constitutional principle provides a conceptual framework for challenging the use of the FirstAmendment as the constitutional predicate for nonparticipatory association that results in compelled political speech. Treating consent as a constitutional principle leads one to ask who is a speaker under the First Amendment. Do individuals lose their rights of political speech when they invest in business corporations or contribute to nonprofit organizations? How can individuals use associations to amplify their voices in political campaigns? Treating consent as a constitutional principle also leads to questions about the relationship between political speech during campaigns and the nature of representation once the election is over. If voters have little role as speakers during election campaigns, does this dilute the power of their vote as a mechanism for holding elected representatives accountable and thereby ensuring the legitimacy of government?” What is the operational relationship between consent and legitimate government?

Consent is not the only constitutional principle important to understanding the relationship between campaign finance and government legitimacy. AsJustice Souter has emphasized, the Constitution embraces a multiplicity of desirable values, not all of which are simultaneously achievable. As he notes,”[t]he Constitution is a pantheon of values, and a lot of hard cases are hard because the Constitution gives no simple rule of decision for the cases in which one of the values is truly at odds with another.” While the First Amendment provides that “Congress shall make no law… abridging the freedom of speech, “no law” does not mean exactly, literally, and absolutely “no law.” The First Amendment Speech Clause is necessarily read as part of both the FirstAmendment, which includes the Assembly Clause, and the Constitution as a whole. While Justice Souter focused on the publication of the Pentagon Papers in his First Amendment analysis, the same approach applies to understanding the First Amendment in the context of campaign finance. Nothing in the Constitution supports a reading of the First Amendment Speech Clause that does not take into account consent and other Constitutional values as well.

This Article explores the relationship between nonparticipatory association and compelled speech through a framework based on consent as a constitutional principle. Part II discusses consent as a constitutional principle. Part III discusses the attenuated development of the jurisprudence of association. Part IV analyzes the concept of participatory association and its relationship to compelled political speech. Part V analyzes Citizens United in terms of the failure of associational consent. Part VI explores potential operational remedies to the negation of consent in Citizens United. Part VII concludes with a brief observation on developing a jurisprudence of participatory association based on consent.


Suggested Reading

Citizens United is simply the culmination of the Court's narrow view of campaign finance, elevating individual speech rights and extending them to corporation sand unions at the expense of the broad, egalitarian conception of the American republic.