Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

—First Amendment, US Constitution

President Barack H. Obama will deliver his first State of the Union address1 on Wednesday in a political climate that, after one year in office, has changed—though to what extent is the subject of much debate.

With the election last week in Massachusetts of Scott Brown, a Republican, to replace Edward M. Kennedy, who died on 25 August 2009 after serving in the United States Senate for 46 years, there is increasing disagreement about the future of the President’s agenda and the potential strength of the political parties in upcoming mid-term elections.  Republicans, along with a raft of media analysts, claim Senator-elect Brown’s victory is a referendum on President Obama’s ideas and a sign of the power of the people—particularly the rising influence of the Tea Party movement.  For the first time, the President has adopted what seems a defensive tone, saying yesterday in an interview given to Diane Sawyer of ABC News that he would “rather be a really good one-term president than a mediocre two-term president.”

At the same time, the President has begun a subtle but noticeable shift in rhetoric and policy focus.  Moving away from soaring oratory to advocate sweeping government involvement in healthcare, banking and the auto industry, the President has adopted an increasingly explicit “populist” anti-corporate voice, registering sharp criticism of corporate behavior and advocating a tax on Wall Street, and an increasingly prosaic—even halting—delivery of smaller and more traditional proposals aimed at individual—especially Middle Class—pocketbooks and controlling government:  tax incentives for retirement savings and child care; caps on student loan payments; a federal spending freeze that nonetheless exempts the largest items in the federal budget. 

Amid all of this, the United States Supreme Court announced last Thursday its decision in Citizens United v. Federal Election Commission.  Among the most eagerly anticipated decisions of the Court’s Term, the Court struck down provisions of campaign finance legislation—what is commonly called McCain-Feingold2—that restrict when and how a corporation may spend money to endorse or oppose specific candidates for elective office.  A historic decision, Citizens United overthrows 100 years of law and political understanding, establishing that corporations have the same first amendment rights as individuals.

The response to this decision has been varied.  The President called the decision, “a major victory for big oil, Wall Street banks, health insurance companies and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans,”4 and has called for a ‘robust’ legislative response.  Senator Mitch McConnell (R–KY), the Republican Leader, long a fierce opponent of McCain-Feingold and a litigant in previous court challenges to it, called the decision “an important step in the direction of restoring the First Amendment rights of these groups.”3  In a brief and initial response on SCOTUSblog,5 Laurence H. Tribe, Harvard Law School Professor of Constitutional Law, cautioned against too extreme a response in any direction, reminding readers that corporations are “risk-averse and hesitate to alienate large sectors of their customer and client base” (McCain-Feingold’s disclosure requirements remain intact) and there are remedies in corporate law (e.g., shareholder lawsuits for wasteful corporate spending) and social understanding (does an investor buy company stocks to fund the political wishes of its board?).

The prospect of unfettered corporate financial involvement in the political process—elections in particular—is of grave concern.  Leaving aside the legal-technical (and perhaps surreal) issue of whether a corporation spending money is, in fact, “speech,” given the breadth of the Supreme Court’s decision in Citizen’s United and that the First Amendment is at issue, it seems a direct and durable legislative answer will be hard to come by.

With the establishment of a corporation’s First Amendment rights, legislation directly affecting what a corporation says will trigger a particularly searching and muscular level of judicial review known as “strict scrutiny.”  When using this level of review, a court asks whether the government uses ‘narrowly tailored’ means to advance a ‘compelling interest.’  As the adage goes, strict scrutiny is ‘strict in name; fatal in practice.’  In its unusual approach to Citizens United, requesting re-argument and then overturning a significant body of law, the Court seems to have indicated its particular sensitivity to the First Amendment and political participation.

There is at least one other Constitutional means for Congress, without passing a law, to address the deleterious affect of money in politics.  Article I, section 5 establishes Congress’ power to police its membership, saying, “Each House shall be the judge of the elections, returns and qualifications of its own members” and that, “Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member.”6

Congress has used this power before and Congress effecting explicit Art. I, sec. 5 powers is perhaps a more tenable response to the Court than legislation for two important reasons.  This solution would affect corporate speech indirectly in this instance, focusing not on a corporation but on Congressional membership.  This approach also presents a reviewing court with an essential and prior institutional and jurisprudential question about Separation of Powers and the reach of Judicial Power.  These considerations may afford Congress better protection against Judicial Power than Congress would receive when trying to regulate what the Court now views as a corporation’s “fundamental right.”  When a branch of government acts on self-regulatory powers the Constitution explicitly establishes, a reviewing court must decide—theoretically first—whether Judicial Power extends so far.  Assuming judicial power is applicable, a court then may apply a degree of deference to legislative decision-making that is less powerful than the strict scrutiny a court applies when the government tries to affect directly a Constitutional right.

The idea is not without its problems, however.  Three in particular come to mind:

First, as a general matter, Congress’ Art. I, sec. 5 power would interfere with democratic principle and practice to the extent this Congressional power affects elected representatives.  Second, this solution depends on a Congressional membership that holds preservation of democratic principle and practice and institutional integrity above local and partisan interests.  Frankly, given the acidic level of partisanship that seems to pervade at least public discourse by and about Congress, it seems likely in this climate that the Art. I, sec. 5 solution would turn into a partisan tit-for-tat instead of a means to preserve democratic institutional integrity.  Third, in Citizens United the Court has shown a historic willingness to assert the Judicial Power where free speech and political participation are involved.

While these problems are worth considering and may be true in isolation, it is important to consider that the Founders included Art. I, sec. 5 among other provisions to use the preservation of democratic institutions as the means to mitigate the effects of unbridled power in a democracy.  The proposed Art. I, sec. 5 solution is meant to address the threat posed by a political system drowning in corporate financing the effect of which Congress determines is more dangerous to democracy than the threat posed by a democratic institution using its explicit Constitutional powers to preserve its integrity for the benefit of those Congress is established to represent.

There is no easy answer to the issues Citizens United presents.  One thing is certain:  In our founding, citizens united to establish the First Amendment to protect a diversity of opinion—not the doings of theoretically unified entities—as the life-blood of the political process.

AUTHOR’S NOTES

1  Article II, section 3, clause 1 establishes that President “shall from time to time give to the Congress information of the state of the union, and recommend to their consideration such measures as he shall judge necessary and expedient.”  By tradition, the first address the President makes to the Congress after inauguration is not called a “State of the Union.”

2  Bipartisan Campaign Reform Act of 2002 (BCRA).  For an excellent overview of BCRA, please visit the Legal Information Institute at Cornell University Law School. 

3 Pols weigh in on Citizens United decision, 21 January 2010, Politico.

4  Statement from the President on Today’s Supreme Court Decision. 21 January 2010, The White House Briefing Room, Statements & Releases.  See also, Justices, 5-4, Reject Corporate Spending Limit, 21 January 2010, The New York Times.

5  What Should Congress Do About Citizens United? An analysis of the ruling and a possible legislative response, 24 January 2010, SCOTUSblog.

6  In full, Article I, section 5 reads,

“Each House shall be the judge of the elections, returns and qualifications of its own members, and a majority of each shall constitute a quorum to do business; but a smaller number may adjourn from day to day, and may be authorized to compel the attendance of absent members, in such manner, and under such penalties as each House may provide.

Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member.

Each House shall keep a journal of its proceedings, and from time to time publish the same, excepting such parts as may in their judgment require secrecy; and the yeas and nays of the members of either House on any question shall, at the desire of one fifth of those present, be entered on the journal.

Neither House, during the session of Congress, shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two Houses shall be sitting.”