Scholarship highlight: Michael McConnell, In Defense of Citizens United

Michael W. McConnell, In Defense of Citizens United (forthcoming Yale Law Journal).

Professor McConnell emphasizes he is not an opponent of reform efforts:

Unlike some defenders of Citizens United, I am not hostile to efforts to reform our system of campaign finance, which is a disgrace. I believe the current system favors incumbents and breeds an unhealthy collaboration between government and powerful entrenched economic interests, both labor and corporate, at the expense of small business, ordinary citizens, free enterprise, and the forces of economic change. I find the majority’s sunny dismissal of the corrupting influence of independent expenditures wholly unpersuasive. In the past I have proposed campaign finance reforms that avoid these pitfalls, would serve better to democratize elections, and would pass constitutional muster.

At 2-3.

His first point looks at the Press Clause. He notes problems with the Press Clause in attempts to regulate corporate spending to speak on behalf of a candidate; I excerpt one point here:

Although I am unaware of any litigated cases on the point, it probably does not matter whether a newspaper or documentary producer is non-profit. Because the Press Clause forbids the licensing of the press, it would seem to follow that the government has no authority to regulate the financial structure or source of funds of an organization as a condition to the right to publish.

At 9.

His second point challenges the contribution-expenditure distinction. He notes there is a majority on the Court that would abolish the distinction, but that this majority fractures on Congress's proper role in regulating contributions and expenditures. I'll just pick one of his points here as he critiques the conclusion in Buckley v. Valeo that (and this is greatly simplified) a contribution to a candidate can be limited because any contributions symbolizes allegiance to the candidate:

To say that contribution limits impose no significant restraint on speech is like saying that a 15-minute limitation on labor picketing would be fine, on the theory that once the picketer has engaged in the “symbolic act of picketing” there is no point in keeping it up.

At 33.

A thoughtful read.