Jeremy Mallory has posted this draft on SSRN (Cal Western Law Review). Here is the abstract:
Citizens United has already taken its place as a landmark decision of the 2009 Term of the Roberts Court. Its story is not complete, however: while it overturned Austin v. Michigan Chamber of Commerce and rejected the equalization of voice in politics as a valid justification for constraints on spending, it did not excise deeper concerns – both congressional and judicial – about the corrupting misuse of “other people’s money,” in Louis Brandeis’s memorable phrasing. A line of cases regarding the use of union dues for political purposes (primarily Communications Workers of America v. Beck and Abood v. Detroit Board of Education) and the legislative findings of the Tillman Act present a coherent description of political corruption that Citizens United left standing, but never seriously reckoned with. Given that these legislative and judicial convictions retain their vitality even after Citizens United, the Court must modify the Citizens United regime to accommodate this view of corruption. Permitting shareholders to opt their investments out of political use would be a sufficient protection for their right not to have their money used for political speech with which they disagree while protecting the corporation’s right to political speech articulated in Citizens United.
This article draws out the difficulty recognized in the union-dues cases – having one’s money used for political speech with which one disagrees – and applies it to the new Citizens United world. Because Citizens United presented a legal rule with little guidance as to implementation, this article opens a much-needed discourse on how to work with the new world that has taken hold in campaign finance.