SECOND DRAFT (posted Jan. 25, 2010)
Citizens United v. Federal Election Commission 588 US **** (2010) [No. 08-205]
Citizens United or Citizens UNTIED?
Matthew Robinson, PhD
The First Amendment to the US Constitution states, in part, “Congress shall make no law … abridging the freedom of speech.” This right is, according to the US Supreme Court, not absolute, and can be restricted if doing so “furthers a compelling interest and is narrowly tailored to achieve that interest.” An example would be restricting the right of corporate speech in order to reduce corruption and the appearance of corruption in government.
Concerns about corporate power in a democracy were expressed by the Founding Fathers, most notably Thomas Jefferson. Further, for more than 100 years, Congress has worked in a bi-partisan effort to limit corporate influence over the American elections process, largely because of concerns over corruption, both real and perceived.
These efforts resulted in the Federal Elections Campaign Act of 1971 (FECA) and most recently in the Bipartisan Campaign Reform Act of 2002 (BCRA) – commonly referred to as “McCain-Feingold” after its authors, Republican John McCain and Democrat Russ Feingold. FECA provided needed campaign finance reform but still allowed corporations and unions to establish political action committees (PACs) to finance campaign contributions; this law has been accepted as legitimate for 40 years.
BCRA, according to the Court, prohibits “corporations and unions from using general treasury funds to make direct contributions to candidates or indirect expenditures that expressly advocate the election or defeat of a candidate, through any form of media, in connection with certain qualified federal elections.” This includes any publically distributed electioneering communications such as “broadcast, cable, or satellite communication” referring to a candidate for federal office made within 30 days of a primary election or 60 days within a general election. Violations of this law amount to crimes, punished as felonies in the federal court system.
This element of the McCain-Feingold law is no longer considered Constitutional, thanks to a recent ruling by the US Supreme Court in Citizens United v. Federal Election Commission. The 5-4 decision was hailed in a Wall Street Journal editorial as “a wonderful decision that restores political speech to the primacy it was intended to have under the First Amendment” but also assayed in a New York Times editorial as a “disastrous” and “radical” decision that “strikes at the heart of democracy” that will “thrust politics back to the robber-baron era of the 19th century.”
The decision of the Court, delivered by Justice Kennedy and joined in part by Justices Scalia, Alito, and Thomas, as well as Chief Justice Roberts, arose out of a documentary during the last primary election cycle about Hillary Rodham Clinton that was produced by a conservative advocacy group called Citizens United. Citizens United sued the Federal Election Commission since the film was not allowed to be shown on television because of BCRA restrictions. Amazingly, Citizens United did not make the argument decided by the Court in its original appearance before the Court in March 2009, at least not until September 2009 when they were invited back by the Justices who would become the majority in the Citizens United case.
The ruling dealt with whether corporations (as well as unions) can spend limitless amounts of money trying to sway voters through direct expenditures close to election day; the Court held that they can. The reason? Any effort by the government to restrict a “person” (which the Court holds to include a corporation) from providing information to citizens amounts to “censorship to control thought,” something unlawful according to the majority. The Court writes that the “First Amendment confirms the freedom to think for ourselves” and the more information citizens have in this process the better.
The ruling is based in part on the Court’s assertion that “the public begins to concentrate on elections only in the weeks immediately before they are held” and because there “are short timeframes in which speech can have influence.” Thus, BCRA imposed limits of speech during the final two months of elections are particularly harmful to corporations (as well as unions) because it is only during this time that voters supposedly pay attention to elections. This is hardly a flattering depiction of the US electorate.
That, after the Court's decision, conservative Republican McCain called the Justices in the majority “extremely naïve” about the influence of corporate money on the legislative process, should speak volumes. According to McCain the ruling demonstrates “a great disconnect between the justices and reality.” In fact, corporations (and to a much less degree, unions) held enormous power in America’s political system, even after BCRA and before the Citizens United ruling.
Now, in the wake of the Citizens United decision, corporations (and to a much less degree, unions), have been empowered to spend endless amounts of money to sway elections in their favor, even in cases when the law does not serve the interests of the US government (for example, when a foreign based corporation pushes for laws that may conflict with America’s interests). The majority is not at all concerned with this reality, writing: “The appearance of influence [over] or access [to lawmakers] … will not cause the electorate to lose faith in our democracy.”
In my opinion, the ruling by the Court is based on an incorrect premise that federal law banned corporate speech, something inconsistent with the First Amendment to the US Constitution. In fact, under both FECA and BCRA, corporations were still permitted to establish and utilize PACs for the purpose of advocacy through electronic communications, something strangely acknowledged by the majority when it writes that BCRA “is a ban on corporate speech notwithstanding the fact that a PAC created by a corporation can still speak.” Read that again. The Court is basically saying that federal law bans corporations from speaking even though it does not ban them from speaking.
The majority also suggests that: “The right of citizens to reach consensus is a precondition to enlightened self-government and a necessary means to protect it.” What is interesting is that corporations are not citizens of the United States (even if the Court insists they are persons), and they certainly are not necessarily loyal to the United States or to what Justice Stevens refers to as “the common good.” Stevens writes that although they “make enormous contributions to our society, corporations are not actually members of it.” Further, since corporations “may be managed and controlled by nonresidents, their interests may conflict in fundamental respects with the interests of eligible voters.”
All of the Justices in the case agree about the importance of free speech in a democracy. What they disagree about is whether it is reasonable to restrict certain kinds of speech by certain classes of persons (in this case, corporations and unions) under certain circumstances. The majority suggests that by “taking the right to speak from some and giving it to others, the Government deprives the disadvantaged person or class of the right to use speech to strive to establish worth, standing, and respect for the speaker’s voice.” This is a tremendously important doctrine that every Justice would support, at least in the ideal.
But, of course, this is the real world, and in real America, we're talking about very powerful corporations here (as well as unions). BCRA deals with issues of their speech rather than some "disadvantaged person or class." These entities can hardly be considered “disadvantaged” relative to average citizens, even with BCRA restrictions, in spite of the majority’s efforts to characterize the typical corporation as small and not wealthy.
Amazingly, according to Justice Stevens, the group Citizens United is in fact “a wealthy nonprofit corporation that runs a … PAC with millions of dollars in assets.” Thus under BCRA, the group “could have used those assets to televise and promote” its film, and it “could have spent unrestricted sums to broadcast” the film “at any time other than the30 days before the last primary election.” In other words, Citizens United in no way had its supposed free speech rights banned by the law. Thus, the issue should not have even been before the Court, as noted so eloquently by Justice Stevens, who delivered the 90-page dissent (joined by Justices Ginsberg, Breyer, and Sotomayor).
Justice Stevens writes that corporations are not actually persons, and suggests that “corporations have no consciences, no beliefs, no feelings, no thoughts, no desires” and they “are not themselves members of ‘We the People’ by whom and for whom our Constitution was established.” One of course then wonders why the Court has held that corporations are persons for more than 100 years, with, according to author Wade Rowland, “the same protections as humans” with regard to “rights to free speech; freedom from unreasonable searches, and searches without warrants; freedom from double jeopardy; and trial by jury in both criminal and civil cases.”
In spite of this, Stevens describes the belief that corporations are persons as “useful legal fiction.” Interestingly, it turns out that corporations are seen as persons by the Court thanks largely to a Court decision from 1886 – Santa Clara County v. the Southern Pacific Railroad. The case dealt with whether a railroad company could be legally taxed. A court reporter's notes summarizing the Court's decision, published in United States Reports, noted that: "The Court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does." Although these words do not appear in the Court's decision itself, from this point on, corporations were seen as persons by the Court. Author Thom Hartmann claims in his book, Unequal Protection: The Rise of Corporate Dominance and the Theft of Human Rights, that the court reporter intentionally put these words in his notes to serve corporations; the reporter had previously served as president of a railroad company.
One especially wonders why corporations are treated as persons by the Court given their goals. Corporations are not constrained by the morals and consciences of individual persons; instead, they inspire for profit above any and all other considerations, including the public good. Perhaps author Joel Bakan describes this reality best in his groundbreaking work, The Corporation: The Pathological Pursuit of Power. Bakan shows that corporations were originally created for very limited purposes but that they have grown over time into entities in some ways more powerful than national governments.
Wade Rowland’s book, Greed, Inc.: Why Corporations Rule Our World and How We Let It Happen, demonstrates that “doing the right thing” does not matter to corporations, who are legally required to pursue wealth even at the expense of consumer safety. (My own book, Greed is Good: Maximization and Elite Deviance in America) co-authored with colleague Dan Murphy, shows that greed helps explain corporate crime in the United States, something that is far more dangerous and costly than all streets crimes combined, including murder, bank robbery, theft, car theft, and so forth).
Other than the broad implications of this ruling for American democracy, the most shocking part about the ruling is that it was decided on the basis of the ideology of five Justices (all of whom were nominated by Republican presidents) and that it is in violation of the principles of stare decisis and judicial restraint. The former claim is demonstrated by the fact that two recent Court precedents (1990 and 2003) were overturned even though literally no empirical evidence exists that corporate speech has actually been harmed under BCRA; corporate money plays a major role in America's electoral system even with BCRA. For example, data from the Center for Responsive Politics show that in the 2008 election cycle, a total of $5.4 billion was spent by candidates for the presidency, Senate and House, as well as political parties and interest groups. Most of this money came from corporations, unions, their PACs, and wealthy individuals. Expect this figure to grow over time and for especially large corporations to have a much larger impact on federal elections. And those corporations with the deepest pockets will have the most ability to influence elections, including judicial elections since most judges in the US are elected!
The latter claim that the court did not practice judicial restraint is demonstrated by the fact that Citizens United did not even raise the challenge decided by the Court; instead, the five Justices from the majority invited Citizens United back to the Court to argue the issue. This is perhaps judicial activism at its worse, only in this case it is committed by conservative justices who supposedly follow an approach to interpreting the law and the US Constitution that calls for caution and responsibility impermissible of inventing new law or overturning precedents based merely on personal opinion.
As for the actual implications of the decision, only time will tell. But the decision allows corporations to directly impact elections, with unlimited money and no interference by Congress, whether through a PAC or not. This could be disastrous. Imagine, for example, your federal legislators being sponsored by corporations, much like professional athletes. An equally serious possibility is offered by Justice Stevens: “Politicians who fear that a certain corporation can make or break their reelection changes may be cowed into silence about that corporation.” Add this to the fact that corporations already own the mainstream press (e.g., ABC, NBC, CBS, Fox, CNN) and one wonders who will broadcast corporate misdeeds and hold corporations accountable for them (as persons, ironically).
Another implication, not considered by the Court, is that this decision will allow the largest of corporations to help elect the candidates that will assist them defeat their smaller business competitors, who will then create legislation that diminishes the power of smaller companies even further. This could lead to increased monopolization of industry and further strain the ability of smaller and local companies from fairly competing in the economy, putting the American consumer at a serious disadvantage due to decreased competition for customers.
Although Congress will take steps to attempt to correct this ruling, the only real solution to this problem is for the Court to one day hold that corporations are not persons in the first place, making the whole issue of corporate rights under the US Constitution moot. Of course this will not be possible unless a future Court also abandons the principles of judicial restraint and stare decisis.
Since the majority in Citizens United has already shown that these principles do not really matter (in spite of Chief Justice Roberts’ efforts to make his ruling seem consistent with them in a separate opinion in Citizens United), we might expect another Court with a liberal majority to do just this. On that day, we’ll know once and for all that even the US Supreme Court has been corrupted by political ideology, if the Citizens United decision did not already make that perfectly clear. Consider, for example, that of the six Justices nominated by Republican presidents, five of them voted to overturn two Court precedents by holding it unconstitutional to restrict free speech of corporations (and unions). Each of the three Justices nominated by Democratic presidents opted to uphold the federal statutes as well as two recent Court precedents.
One major advantage of stripping corporations of the power of personhood would be to level out the playing field in elections. We now have an elections system where money is treated by the Court as speech; thus those with the most money have the most speech.
Stripping corporations of their personhood status would ultimately empower individual citizens to make a greater determination of who should represent them in political office. Expect at least some members of Congress to begin discussing efforts to reduce corporate power on the American electoral process, including through publically financed campaigns.