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

Frances R. Hill

Synopsis

In Citizens United, the Supreme Court put non-participatory association and compelled political speech at the heart of campaign finance jurisprudence. In so doing, the Court changed the relationship between organizations and their members by amplifying the political-speech rights of corporations and constraining the associational and political-speech rights of members and shareholders. Members and shareholders no longer have an effective means of giving or withholding consent to the political decisions made by organization managers. Many will 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 in Citizens United does not address this profound change in the scope of managerial discretion as an element of freedom of association. Furthermore, the Court never asked whether shareholders and members should be considered speakers with protected First Amendment rights. This deficiency is partially a result of the fact that current jurisprudence of association has not acknowledged the rights of those who associate as separate from that of the association to which they belong.

This article explores the relationship between non-participatory association and compelled speech through a framework based on consent as a constitutional principle. The author argues not only that we should treat consent as a constitutional principle, but also that a theory of association consistent with such a principle should consider associations as both entities and aggregates. The author analyzes Citizens United in terms of the failure of associational consent and discusses potential remedies to that failure.

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Money and Rights

Deborah Hellman

20 Dollars art3 (Photo credit: Wikipedia)

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.

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Citizens United and Equality Forgotten

Mark C. Alexander

Synopsis

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.

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Introduction to the Symposium Issue: Money, Politics, and the Constitution: Beyond Citizen’s United

Mimi Murray Digby Marziani

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