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Citizens United: What Would Justice Brennan Do? (WWJBD)

What would Justice Brennan do in the Citizens United case? …He would side with the dissent to protect shareholders’ interests.

On March 27, 2010, the Brennan Center hosted a symposium of some of the nation’s leading constitutional thinkers to work toward a new jurisprudence of money and politics in the wake of Citizens United. Participants largely agreed on the need to place voters back at the center of our politics, and the desirability of restoring the concept of equality to its rightful place in our constitutional jurisprudence.

Throughout the day, Justice Brennan’s legacy of deep concern for social justice combined with his respect for First Amendment freedoms was a touchstone for many speakers. One of the questions that we didn’t get a chance to discuss at the symposium was: what would Justice Brennan have done in the case of Citizens United v. F.E.C.

While we can’t be 100% certain, his own decisions indicate that Justice Brennan would have sided with reasonable campaign finance restrictions including restrictions on electoral spending by business corporations.  He would have voted with Justice Steven’s passionate dissent. Why am I so sure? The answer is in Justice Brennan’s concurring opinion in Austin v. Michigan Chamber of Commerce, one of the cases summarily overruled by Citizens United.

In his Austin concurrence which quoted liberally from his Massachusetts Citizens for Life majority opinion, Justice Brennan explained that the restrictions on corporate independent expenditures upheld in the case were supported by the need for protecting the shareholders footing the bill. Justice Brennan noted, “[a] stockholder might oppose the use of corporate funds drawn from the general treasury – which represents, after all, his money – in support of a particular political candidate.”

Justice Brennan was particularly concerned with the potential for individual business or trade associations to use other people’s money in politics. He wrote,

“The Michigan statute … prevent[s] both the Chamber and other business corporations from using the funds of other persons for purposes that those persons may not support….In addition, the Michigan law protects dissenting shareholders of business corporations that are members of the Chamber to the extent that such shareholders oppose the use of their money, paid as dues to the Chamber out of general corporate treasury funds, for political campaigns.”

He wasn’t shy about the governmental interest in stopping a corporation from hijacking investments for use in politics. Justice Brennan argued in Austin, “the State surely has a compelling interest in preventing a corporation it has chartered from exploiting those who do not wish to contribute to the Chamber’s political message.”

Justice Brennan shared the Austin majority’s worry that corporate money could be distorting in the political process, reiterating “the legitimacy of Congress’ concern that organizations that amass great wealth in the economic marketplace not gain unfair advantage in the political marketplace”.

So it is in the spirit of Justice Brennan that the Brennan Center has urged Congress to take strong policy responses to Citizens United including adopting public financing for congressional elections through the Fair Elections Now Act (H.R. 1826).  But we have also urged another approach which is consistent with Justice Brennan’s clearly stated belief in shareholder protection: providing shareholders a vote on future corporate political spending as embodied in the Shareholder Protection Act (H.R. 4790).  This is a constitutional way to honor the rights of the investors who may be otherwise pulled into political battles after Citizens United against their will. This is precisely what Justice Brennan would do.