So argues this article by TImothy Kuhner, titled Citizens United as Neoliberal Jurisprudence: The Resurgence of Economic Theory. The abstract:
On January 21st of 2010, the Roberts Court freed corporations to spend unlimited general treasury funds on political advertisements, including those that mention candidates by name and those that are run in the weeks before an election. Shown by recent polls to be one of the most unpopular cases in U.S. history, Citizens United v. FEC promises to set the tone for the Roberts Court’s treatment of money-in-politics cases. This article shows that Citizens’ holding and reasoning flow directly from neoclassical economic theory, which assumes a perfect (political) market and resists government intervention aimed at correcting power imbalances and anti-competitive behavior. This laissez-faire stance is not new to the Court, but it had been in decline during Chief Justice Rehnquist’s long tenure. Citizens resuscitates a line of neoclassical jurisprudence that traces back to the mid 1970s, in particular to Buckley v. Valeo and First National Bank of Boston v. Bellotti. After summarizing the neoclassical assumptions of Citizens, this Article provides a thorough explanation and critique of these past cases which, in essence, imported economic theory to determine the meaning of democracy. Justice Stevens’ dissenting opinion in Citizens, and alternatives to neoclassical ideology more generally, are discussed in conclusion. In sum, this Article offers two basic contributions to the literature, the first descriptive and the second normative: It explains the neoclassical underpinnings of the line of cases that culminate in Citizens, thus offering a new way to understand the dominant ideology on the Roberts Court; and it provides an argument, rooted in institutional economic theory and separatist philosophy, that the market sphere should not govern the political sphere.
And from the article:
Two things stand out in the majority opinion: first, it espouses a dogmatic, free-market form of economic theory; and second, it is printed on the pages of a judicial opinion that authoritatively defines the terms of the First Amendment. This combination of capitalist ideology and caselaw makes up what I call neoliberal jurisprudence,6 the use of neoclassical economic theory as judicial reasoning. Although neoliberalism ―is anything but a succinct, clearly defined political philosophy,‖7 all concede that it is a political philosophy based on a particular variant of economic theory and that it is intended to fashion a political order friendly to capital. The Chicago School brand of neoliberalism is most relevant here, as it is credited with ―the idea that much of politics could be understood as if it were a market process, and therefore amenable to formalization through neoclassical theory.‖8 Based on the claim that voters and politicians are only out to maximize their own gains, neoliberalism sees ―the state [as] merely an inferior means of attaining outcomes that the market could provide better and more efficiently.‖9 With regard to its instrumental purposes, neoliberalism is based on two realizations: ―[t]he [m]arket would not naturally conjure the conditions for its own continued flourishing‖ and, accordingly, the state must be ―reengineer[ed]… in order to guarantee the success of the market and its most important participants, modern corporations.‖10 I later explain the core precepts of neoliberal jurisprudence as espoused by the Court. For now, it suffices to note that it is a jurisprudence that borrows openly from neoclassical economic theory and that its goals are not inclusive of efficiency, for neoliberalism relies not on evidence but on general precepts. Incorporated into caselaw, neoliberalism becomes an explicitly ideological variant of legal philosophy that seeks the creation of an unregulated market for political goods.
A resurgence of Chicago economics can’t be a bad thing, can it?