Friday, January 29, 2010

Contracting Around Citizens United

Writing in the Washington Post earlier this week (here), Yale Law Professors Bruce Ackerman and Ian Ayres suggest that one plainly lawful way to restrict corporate spending on election campaigns, after Citizens United, would be for the federal government to impose restrictions in all government contracts with corporations. According to Government Accountability Office (GAO) reports, approximately three-quarters of the 100 largest American corporations are federal contractors. Under Ackerman and Ayres's rule, those corporations would have to choose between doing business with the federal government or financing campaigns; they could not do both.

I have two questions about Ackerman and Ayres's proposal.

(1) Would it violate the unconstitutional conditions doctrine (on which see this)? Their own analysis suggests not, but given the current composition of the Court, I'm not so sure. It's not hard to imagine the Court concluding that an essential nexus exists between being a federal contractor and exercising First Amendment free speech rights.

(2) Is it a good idea to contractually limit the speech rights of some corporations, but not others? Given the diversity of corporations and corporate interests, wouldn't the public interest be harmed by limiting corporate speech to only some corporations? For example, suppose that Duke Power obtains government contracts and Exxon does not. I wouldn't be particular satisfied that Exxon, which has opposed climate legislation, could spend millions on political campaigns, while Duke Power, which supports climate legislation, could spend nothing.

No comments:

Post a Comment

I actively moderate comments for spam, advertisements, and abusive or offensive language.