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Concession Theory and the Doctrine of Unconstitutional Conditions

Last week I posted the abstract from the most recent draft of my latest paper, Rehabilitating Concession Theory, ___ OKLA. L. REV. ___ (forthcoming).  This week I’d like to highlight one of the key arguments I make in the paper, which is a rebuttal of the proposition that the unconstitutional conditions doctrine somehow trumps concession theory.  Here is a relevant excerpt:

One of the challenges the Citizens United majority posed to those who would base regulation of corporate political speech on the unique state-granted privileges of corporate status is the concept of unconstitutional conditions.  Kathleen Sullivan describes the doctrine as follows:

"The doctrine of unconstitutional conditions holds that government may not grant a benefit on the condition that the beneficiary surrender a constitutional right, even if the government may withhold that benefit altogether. It reflects the triumph of the view that government may not do indirectly what it may not do directly over the view that the greater power to deny a benefit includes the lesser power to impose a condition on its receipt…. The Lochner Court first fashioned the doctrine." [Kathleen M. Sullivan, Unconstitutional Conditions, 102 Harv. L. Rev. 1413, 1415 (1991).]  ….

[However], it is unclear what exactly would be added to the relevant analysis by applying the unconstitutional conditions doctrine since, like the Free Speech clause of the First Amendment itself, it does not actually constitute a complete bar to government action but rather requires the government to satisfy some form of heightened scrutiny….

[Furthermore], the unconstitutional conditions analysis can turn on the germaneness of the condition to the purpose of the regulation…. Once we take concession theory as our starting point (which we must if we are analyzing unconstitutional conditions doctrine as a form of rebuttal to concession theory) we can view the purpose of conditioning corporate status on limited corporate political speech as having an “essential nexus” to the conceptualization of the corporation as a state concession since that conceptualization has from the beginning included a fear of undue political influence….

Finally, and perhaps most importantly, it is not even clear that an unconstitutional conditions analysis is applicable.  Certainly, the analysis would be applicable if a state government were to require incorporators to agree not to engage in corporate political speech as a condition of incorporating in the state, but it is less clear that using concession theory to justify the regulation of corporate political speech by the federal government similarly implicates the doctrine.  What benefit is the federal government conditioning on the waiver of First Amendment rights?  If the answer is “none,” then we are arguably simply back to the question whether understanding the corporation as a state concession as opposed to merely an association of individuals improves the ability of the federal government to satisfy its strict-scrutiny burden.  In other words, if the primary purpose of the unconstitutional conditions doctrine is to limit the ability of the government to do indirectly (via the conditioning of benefits) what it cannot do directly, then the doctrine is inapplicable here because the government is in fact directly regulating speech.

As an aside, the Supreme Court will hopefully provide some added clarity to our understanding of unconstitutional conditions soon (go here for more details).

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