109 Mich. L. Rev. 581 (2010-2011)
Citizens United and the Illusion of Coherence; Hasen, Richard L.

handle is hein.journals/mlr109 and id is 589 raw text is: CITIZENS UNITED AND THE
ILLUSION OF COHERENCE
Richard L. Hasen*
The self-congratulatory tone of the majority and concurring opin-
ions in last term's controversial Supreme Court blockbuster,
Citizens United v. Federal Election Commission, extended beyond
the trumpeting of an absolutist vision of the First Amendment that
allows corporations to spend unlimited sums independently to sup-
port or oppose candidates for office. The triumphalism extended to
the majority's view that it had imposed coherence on the unwieldy
body of campaign finance jurisprudence by excising an outlier
1990 opinion, Austin v. Michigan Chamber of Commerce, which
had upheld such corporate limits, and parts of a 2003 opinion,
McConnell v. FEC, extending Austin to unions and to a broader set
of election-related television and radio broadcasts. The majority
saw itself as returning the Court to the fountainhead of this juris-
prudence, the Court's 1976 opinion in Buckley v. Valeo. Citizens
United indisputably harmonized campaign finance law on the ques-
tion of the constitutionality of spending limits on corporations, even
if its view of Austin as an outlier remains contested. But the
Court in doing so amplified and solidified other significant, inco-
herent aspects of its campaign finance jurisprudence.
Part I of this Article situates Citizens United in the campaign fi-
nance jurisprudence that preceded it and describes in detail the key
opinions in the case. Part II explains how the Court's analysis in
Citizens United is likely to lead to new incoherence in the Court's
campaign finance jurisprudence, because it is unlikely that the
Court will follow the new case to its extreme, for example to allow
spending by foreign nationals to influence candidate elections, to
treat spending in judicial elections the same way as spending for
other races, or to strike down reasonable limits on campaign con-
tributions made directly to candidates. Part III suggests that
incoherence is likely to be an enduring feature of the Court's cam-
paign finance jurisprudence, because consistent application of a
coherent approach could well be politically unpalatable for major-
ity of the Justices on the Court. It also considers the challenge such
*  William H. Hannon Distinguished Professor of Law, Loyola Law School-Los Angeles.
Thanks to Ellen Aprill, Bill Araiza, Bruce Cain, Heather Gerken, Jacob Heller, Dan Lowenstein,
David Primo, and Michael Waterstone for useful comments and suggestions. I presented an earlier
version of this Article at the 2010 American Political Science Association annual meeting in Wash-
ington, D.C.

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