Monday, February 1, 2010

Overcoming Citizens United

Jack Balkin and Ian Ayers have an oped in the Washington Post that explains how Congress can overcome the Court's recent decision in Citizens United. Basically, they propose limiting the scope of the decision by enacting legislation which will ban companies who do business with the federal government from "endorsing or opposing a candidate for public office." While this doesn't take care of all potential companies affected by the Court's ruling, it does include many companies, including three quarters of the 100 biggest firms traded on Wall Street.

Good idea? Over at Balkinization, Sandy Levinson thinks not, because such legislation will run afoul of the unconstitutional conditions doctrine. Meaning, Congress stipulating that the condition to contract with the government is dependent on not endorsing or opposing a candidate amounts to a sort of coercion on the company, thus depriving it of its First Amendment rights, recently held by the Court. Furthermore, Sandy thinks that such legislation will not survive the current conservative majority on the Court.

My view is different, and therefore I disagree with Sandy. The unconsitutional conditions doctrine is one of the quagmires of U.S. constitutional law, and I can see a plausible case to be made that such legislation will not be considered an unconstitutional condition. My analysis goes something like this:

No one has a right to contract with the federal government. As a result, the government can confer the benefit (i.e. the government contract) subject to certain conditions. The condition here is not supporting or opposing a candidate/party. Now, that condition obviously requires the recipient of the benefit to relenquish a constitutional right, in this case freedom of speech. However, one can make a case that there is a substantial relationship (nexus) between the benefit and the condition (see, for example, South Dakota v. Dole). Government has an interest in being perceived as fair, neutral, and impartial. If citizens believe (and in fact see) that those companies donating sums to candidates and parties are later the recipients of government contracts, there is a serious suspicion of foul play. Thus, although the companies must relinquish their free speech rights in order to contract with the government, the reasonable nexus between the benefit and condition speaks to a reasonable curtailment of that right, which does not amount to a coercion on the companies. Thus, the condition is not unconstitutional.

Of course, the conservative majority on the Court may find all of this unlikely and deem this measure "coercive", but I believe it's possible that Justice Kennedy might be persuaded, mostly due to his willingness to reach decisions with narrowly tailored exceptions (see, for example, his decision in Parents Involved). True, this time we're talking about free speech, on which Kennedy has expressed a more expansive position, but still, it's possible.

1 comment:

  1. Your position is pretty compelling, Adam. I'm not yet sure where I stand. On the one hand, I often agree with Sanford Levinson's analysis, though I have yet to read his full treatment of the unconstitutional conditions doctrine. On the other, your argument about perception is strong.

    I wonder what you think of Bruce Ackerman and David Wu's proposal of giving each American a refundable federal tax credit of $50 to make contributions (or a single contribution) to federal candidates during presidential years.


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