McConnell, "A Defense of Citizens United"

A very interesting piece defending what Michael McConnell says is "one of the most reviled decisions of the Supreme Court in recent years."  The piece is not a defense of the reasoning in Citizens United; moreover, it criticizes "the majority's sunny dismissal of the corrupting influence of independent expenditures" as "wholly unpersuasive."

Instead, McConnell defends the outcome on the basis of the First Amendment freedom of the press: 

There is no serious doubt that some corporations – media corporations – have a constitutional right under the Press Clause to editorialize about candidates while the voters are making up their minds . . . . So the dispositive question becomes whether the protections of the Press Clause are confined to a certain set of actors, namely the institutional press (however defined), or whether it protects an activity: publishing information and opinions to the general public. Only if the former, narrower, interpretation is valid can Citizens United be wrongly decided. Although the narrow interpretation has received some support in recent years, and Justice Stevens appears to embrace it in one sentence and a footnote in his Citizens United dissent, it is in conflict with the great weight of precedent, departs from the unequivocal historical meaning of the Clause both before and for more than 100 years after its enactment, and – perhaps most decisively – requires a legally enforceable line between “press” and others, which is inherently unworkable and probably would not even produce a different result in Citizens United itself.

He then explores the implications of this disposition, one of the most important of which is that while the right of groups to publish views and opinions about candidates and campaigns would be protected, campaign contributions would not be:

The right to publish belongs to everyone – to natural persons like Thomas Paine, to business corporations like the New York Times Co., and to non-media corporations like Citizens United – but contributing to candidates is not an exercise of the freedom of the press. This is not to claim that there is no constitutional right to contribute to campaigns – just that the Court could have decided Citizens United while leaving the jurisprudence of contributions untouched. From the point of view of judicial minimalism, that would have been a virtue.