The results from the election on Tuesday, November 2, 2010 and the influence on campaign financing enabled by the U.S. Supreme Court ruling on Citizens United v Federal Election Commission (2010) reveal how much the fundamentals of our political process have changed as rights previously reserved for individual citizens are now extended to corporations.
This fundamental change to how campaigns are financed precipitated a significant surge of money into many campaigns in the recent national elections. This ruling and its effect on future elections raises many legal questions regarding politics, democracy and the role of corporations in the United States.
A panel discussion regarding the impact of Citizens United was presented simultaneously via a Skype connection to law students at the WVU College of Law and The University of Akron School of Law by professors from both institutions on Thursday, November 4, 2010 at 12:00 P.M. in the Marlyn E. Lugar Courtroom at the WVU Law Center.
Professor Atiba Ellis (foreground) with
Professors Stefan J. Padfield and Wilson R. Huhn via Skype.
Atiba R. Ellis, an Associate Professor at the WVU College of Law was instrumental in organizing this panel discussion. He focuses his research and writing on the law of democracy with a specific interest in voting rights law, and the intersection of democratic theory with race, class, and other critical legal perspectives. The panel will engage students from two separate law schools exploring the issues associated with one of the most controversial Supreme Court decisions of our time.
Professor Ellis discussed statistics and reporting about spending in the current election with attention to the kinds of spending opened up by the Citizens United decision. He will explore the shift in election law that Citizens United represents and what open questions this creates as it overrules Austin v. Michigan Chamber of Commerce (1990) and partially overrules McConnell v. Federal Election Commission (2003). Professor Ellis will also examine the debate on campaign finance disclosure by corporations that now share the rights of citizens in their ability to contribute to political campaigns.
Joining Professor Ellis on the panel are Stefan J. Padfield, Associate Professor, and Wilson R. Huhn, C. Blake McDowell, Jr., Professor of Law who both serve on the faculty at The University of Akron School of Law.
Professor Stefan J. Padfield, whose areas of expertise cover a wide variety of business law topics, discussed the majority and dissenting opinions in Citizens United. He believes that these opinions were grounded on fundamentally different theories of the corporation and while the majority is silent on the issue and the dissent expressly disavows any role for corporate theory, these differences are striking and deserving of analysis. Professor Padfield also contends that one possible explanation for this discrepancy may be that if the Supreme Court justices were to admit that corporate theory is decisive, they might be open to challenges that they are not the proper body to decide that issue (i.e., what the corporation is).
Professor Wilson R. Huhn, C. Blake McDowell, Jr., Professor of Law and a Constitutional Law Research Fellow at The University of Akron School of Law currently teaches courses in constitutional law, advanced constitutional law, jurisprudence, and commercial paper. Professor Huhn explored two points regarding Citizens United. His first point will examine the critical difference between the rights of “persons” and the rights of “citizens” under the Constitution. He states that all persons have rights to freedom of expression, but only citizens have the right to participate in the political process. Professor Huhn also offers the example that resident aliens have the right to express themselves on a variety of subjects, but they do not have the right to influence our elections. Corporations are most certainly “persons”but should they be considered “citizens”?
In his second point Huhn traced the different results in McConnell and Citizens United to the differences between former Justice Sandra Day O’Connor and present Justice Anthony Kennedy specifically, their contrasting approaches to constitutional interpretation. Professor Huhn believes that O’Connor is fact-specific, contextual, and mindful of precedent; whereas Kennedy is deductive in his approach and reasons from broad, general principles.
In a related project, WVU College of Law Associate Professor, Jena Martin Amerson is working with Professor Elllis in preparation for their upcoming panel at the Society of American Law Teachers (SALT) conference on Transformative Teaching this December in Hawaii. The panel that professors Ellis and Amerson will present focuses on using the Citizens United ruling to teach across disciplines, law school curricula, and at different law schools. The Professors have combined new technology (such as blogging, podcasts and twitter) with traditional teaching practices. They will document their teaching experiences at http://teach21century-ellis.blogspot.com/. The students, meanwhile, will blog about Citizens United from their particular course perspective at http://thoughtsoncitizens.blogspot.com/. They are encouraging professors who teach in areas affected by the Citizens United case (such as corporations, election law, constitutional law) to follow their progress and to share this information with their students. For more information, go to http://www.saltlaw.org/contents/view/092010_HIConference