Some Answers from a Constitutional Perspective n G. Edward White, David and Mary Harrison Distinguished Professor of Law
Is Citizens United an “Historic” Decision?
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… The Court determined that campaign contributions and expenditures were a category of highly protected political speech and signaled that it was becoming increasingly skeptical of rationales for restricting them …
upreme Court decisions come to be thought of as “historic” for different reasons, but typically such decisions combine significant legal, political, and social consequences with rationales that are capable of being generalized over time (as opposed to rationales that seem driven by the particular factual or historical context of the case). Some such decisions end up being deeply entrenched (Marbury v. Madison being the classic example), others (Dred Scott, Plessy v. Ferguson) end up being labeled “notorious” and repudiated. Whatever their ultimate status, “historic” decisions have large consequences (judicial review, the unconstitutionality of Congress’s abolishing slavery in federal territories, the effect of the Equal Protection Clause on legally mandated racial segregation) and rest on interpretations of constitutional provisions (Article III’s ‘cases and controversies’ provision, the 5th Amendment’s Due Process Clause, the 14th Amendment’s Equal Protection Clause) that were designed to apply long past the time the interpretations were formulated. Using those criteria, one can think of Brown, Griswold, and the majority decision in Lochner as “’historic,” even if some of the doctrinal baggage associated with those decisions (‘penumbral rights’ in Griswold and ‘liberty of contract’ in Lochner) has been abandoned. Applying these criteria to Citizens United, the decision clearly has significant short-run and potentially longer-run political consequences, especially in a presidential election year. The question, however, is whether the doctrinal basis of the majority opinion in Citizens United is one designed to transform the constitutional jurisprudence of campaign finance cases and thus to apply widely over time.
Is Citizens United a legal argument or an ideological statement? Does it take First Amendment jurisprudence in a new direction? Part of this question involves something of a detour. I don’t think the line between legal arguments and ideological statements is a bright
UVA Lawyer / spring 2012 35