The Thomas Concurrence in Citizens United

Posted by Mike Dorf

My latest FindLaw column critically examines Citizens United v. FEC.  I conclude that the decision probably won't do as much damage as many of the good-government groups fear because: a) even before Citizens United, corporations had plenty of ways to influence politics; and b) the largest wealthiest corporations will usually be wary of becoming too obviously involved in politics for fear of alienating roughly half of their customers.  Nonetheless, I criticize the Court pretty sharply for its overall obtuseness.

Here I want to add a brief word about Justice Clarence Thomas's remarkable separate opinion.  Although the Citizens United Court split 5-4 on the constitutionality of McCain-Feingold's limitations on corporate independent expenditures, 8 Justices agreed that its disclosure and disclaimer requirements are valid.  As a result, if, say, Exxon-Mobil were to start running ads opposing candidates who want to slow global warming by curbing emissions, it must inform the audience that it is behind the ad and that it hasn't coordinated with the candidate.  The disclosure provision is what, I hope, will somewhat limit the willingness of corporations to become directly involved in campaigns.

Now about those 8 votes.  Justice Thomas dissented, saying that he would also invalidate the disclosure and disclaimer provisions as well.  Correctly noting that the Court has previously recognized a right to anonymous speech, Justice Thomas then invokes the fear of proponents of anti-same-sex marriage initiatives that they will be harassed, threatened or worse if they are denied that right.  That's not entirely surprising.  Justice Thomas joined the recent per curiam in Hollingsworth v. Perry, which also relied on this fear.  But his separate opinion is remarkable nonetheless.

Justice Thomas appears to pre-judge Doe v. Reed, the case in which the Court recently granted cert, addressing the question whether there is a right to keep somewhat private the fact that one signed a petition (in that case as well, opposing gay rights).  As I noted in my FindLaw column on the case, it's legitimately difficult.  But that's all the more reason for each Justice to go into the case with something approximating an open mind.

In his own defense, Justice Thomas might have said that he had to reach the issue presented in Doe v. Reed because it was also presented in Citizens United.  But that's true only if one takes the leap from anonymous speech for natural persons to anonymous speech for corporations.  Yet the sort of threats and intimidation that one might legitimately think entitle natural persons to anonymity when speaking or even when spending money on speech, are quite different for a corporation.  The fear that a corporation might lose customers if it is known that it supports the Democratic or Republican candidate in some election is hardly comparable to the sorts of fears that could chill speech by natural persons.  Even in an extremely corporate-friendly opinion, the other four conservatives in the Citizens United understood this fact.  They are lucky to have Justice Thomas on the Court to make them look almost reasonable by comparison.