Constitutionality of Citizens United Under the Equal Protection Doctrine

This blog is part two of a two part series. Part I defended 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.

As Part I discussed, the four parts to an Equal Protection claim are as follows: (1) who is the actor, (2) what is the classification, (3) based on this classification, what is the appropriate level of scrutiny, and (4) does the government satisfy that level of scrutiny?

Part I analyzed questions one and two. Part I one assumed that an allegation that the government is the actor would be successful, and Part I also established that that classification is natural born persons versus corporations. These assumptions will be assumed in Part II and will not be discussed.

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. Part I argued that the government would argue for rational basis because corporations are taxed and are unable to vote.

Here, natural born persons would want to argue for strict scrutiny because this standard is the highest standard to meet. Under this standard, the government must show that its policy furthers a compelling interest, and the policy is narrowly tailored. However, strict scrutiny is usually applied in instances where the government has discriminated against a group based on ethnicity, national origin, or an immutable characteristic. Here, the classification is not based on ethnicity, national origin, or an immutable characteristic. Therefore, an argument for strict scrutiny will probably be rejected, and the argument for rational basis will most likely be upheld.

Under rational basis, the government must have a legitimate interest, and the means chosen must be reasonably related to that interest. As analyzed in Part I, the government may have a legitimate interest to protect a corporation’s freedom of speech because a corporation cannot vote. However, the means chosen by the government is not reasonably related to that interest.

In attacking the means chosen, the natural born persons will allege that the means chosen are not reasonably related to the interest because the classification is under inclusive and that an alternative means exist. A law is under inclusive if it does not apply to individuals who are similar to those to whom the law applies. Here, the interest alleged is that the government wants to protect corporations because corporations are taxed and cannot vote. However, aliens pay taxes, cannot vote, and are capped on the amount of political campaign contributions they can make, unless the alien is part of a corporation. On the other hand, the government will counter by stating that aliens are not citizens of this country, while corporations are citizens of this country, cannot vote, and are being taxed without representation.

Next, natural born persons would want to allege that an alternative means exist that furthers the government’s legitimate interest. The alternative means is that the government can place the same campaign restrictions on corporations that it uses on natural born persons. This treatment will further the governments interest and will not create a suspect classification between corporations and natural born persons. The government may attempt to counter this argument, but I believe the Court would uphold that an alternative means exist.

In conclusion, natural born citizens can attack the constitutionality of the Citizens United decision. The Court will probably review the classification under the theory of rational basis. Because the burden under this test is minimal, the government would probably be able to satisfy the test, except for proving that the means chosen are sufficient. However, the Court could potentially dodge the issue. In this argument, the remedy requests the government to impose the same campaign restrictions on corporations as it does natural born persons. To dodge the issue, the Court would likely conclude that the remedy lies with the legislature and not with the Court.