This blog is part one of a two part series. Part I defends the Constitutionality of Citizens United from the point of view of the government. Part II will argue against the Constitutionality of Citizens United from the point of view of the natural born persons of the United States.
The decision in Citizens United has created a lot of uproar between corporations and natural born persons. The decision allows corporations to contribute potentially an unlimited amount of capital to political campaigns, while natural born persons are limited on their amount of political contributions. Therefore, the issue is whether this distinction violates the Equal Protection Clause of the Fourteenth Amendment.
In analyzing the Equal protection doctrine, four questions must be met. First, who is the actor? Second, what is the classification? Third, based on this classification, what is the appropriate level of scrutiny? Last, does the government satisfy that level of scrutiny?
The Fourteenth Amendment provides in part that “no state shall…deny to any person within its jurisdiction the equal protection of the laws.” This statement requires that the government be the actor. In the present case, the government is the actor. The government is the actor because legislative statutes cap the amount of political activity a natural born person can make. Then, the Supreme Court in Citizens United created the distinction between corporations and natural born persons by giving corporations an unlimited right to donate to political campaigns. Therefore, the government is the actor, and the Equal Protection Clause applies.
Next, the classification needs to be determined. The classification created by the decision in Citizens United is corporations, which are recognized at law as persons, versus natural born persons. Again, legislative acts place restrictions on how the amount of political activity an individual can contribute. The Supreme Court undermined these acts by allowing corporations to contribute an unlimited amount of resources to campaigns. Therefore, the classification is natural born persons versus corporations.
Third, the level of scrutiny needs to be determined. The three levels of scrutiny are as follows: strict, intermediate, and rational. This classification is a first impression. Therefore, both sides would be free to argue either for the rational basis or for strict scrutiny. Because the government would want to uphold its own classification, it would argue for rational basis.
An argument for rational basis by the government could probably succeed. In determining the level of scrutiny, the Supreme Court has considered the ability of the group to protect itself through the political process. This protection is based on whether the group has access to the political process; the ability to vote. If the group lacks the ability to vote, the court usually applies strict scrutiny. However, in this case the classification was created to remedy the effect of being denied the right to vote. Therefore, the government probably would succeed for rational basis because it uses the classification to remedy the inability of the group to be heard through the political process. Here, the classification is corporations as people who lack access to the political process because they cannot vote versus natural born persons who can and cannot vote.
Last, the classification must meet the rational basis test. Under rational basis, the government must have a legitimate interest, and the means chosen must be reasonably related to that interest. Here, the government interest is allowing corporations access to the political process. The government will contend that because corporations cannot vote they need an alternative means to be heard. This alternative means to be heard is the ability to contribute to campaigns. Next, the government will contend that this is fair because corporations are taxed and have a lot to lose through the political process. Last, the government will contend, as it did in Citizens United, that this is extension of the corporations’ right to Freedom of Speech found in the First Amendment.
The government will contend that its means chosen are reasonably related to those interests. The government will contend that corporations do not have the right to vote, and the only way for corporations to be represented is by extending their freedom of speech through campaign contributions. Therefore, the government will allege that giving corporations the ability to contribute to campaigns, as well as funding their own campaigns, is the only method available to extend this right.
In conclusion, the Supreme Court will probably uphold this analysis. This assumption is based on the fact that the Supreme Court was the actor, who made the classification in the first place. Even though the Court overruled another Supreme Court decision to reach the conclusion in Citizens United, the Court will not overrule itself on this issue. Nonetheless, the opposition’s argument is an interesting argument to make and will follow soon.
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