Against Citizens United 

In defense of our first freedom


Few moments in the Nation’s history have Supreme Court decisions so aroused opposition that they were directly overruled by amendments to the Constitution. It is rare, and it obviously takes a substantial perceived shock to the governmental system before Article V’s revision machinery is called into action. The last instance resulted in the Twenty-sixth Amendment which overcame a Supreme Court decision, Oregon v. Mitchell, to protect eighteen-year-olds’ right to vote. This is the only recollection in the last half century.

Now, there could be another. Within hours after the Court issued its ruling in Citizens United v. Federal Elections Commission, advocacy groups were called for a constitutional amendment to undo the ruling. One such group, the Campaign to Legalize Democracy, circulated an online petition to gather support for the idea; by the next morning, it claimed more than 21,000 signatures. Clearly, the Court’s decision was not taken lightly.

The move to a constitutional amendment, however, is revealing. When a bill is struck down, the popular response is legislative remedy, a more specialized or less ambitious bill. The immediate jump to constitutional amendment suggests a more fundamental issue, that the Court has imposed, redefined, or stripped the meaning of a right. They had changed the rules of the game, and the people were left asking, can we change them back, please? So what riled them up? What caused the stir and sent citizens back to the latter pages of their 200 year old charter? The decision. And for good reason. Citizens United not only constituted a break from recent tradition that overturned multiple presents but, even more troublingly, it issued a broad re-understanding of the idea of free speech — a corrupted and dangerous interpretation of our first freedom.

Background

During the 2008 presidential primary season, Citizens United, a ideological group funded by for-profit corporations, produced an anti-Hillary Clinton documentary to air through a cable television “video on demand” service. In exchange for a fee over a million dollars, a cable television operator consortium would have made the documentary available to cable subscribers to download free “on demand,” as part of an “Election ‘08" series. The McCain-Feingold campaign-finance law, the Bipartisan Campaign Reform Act (BCRA), however, bars certain corporate-funded television broadcasts in the period before an election, and the law requires disclosure by the funders of election-related broadcast advertising. Since Citizens United relied on corporate funding, the group feared the Federal Communications Commission would use the law to block its plans. It asked the court to forbid any such action. Citizens United never directly asked the court to overturn the campaign finance law. It only sought a declaration that the law did not apply in this case. The initial question presented was whether such a documentary distinguishes itself from the kinds of speech — advertisements, for example — governed by BCRA, but upon consideration, the court asked the parties to re-argue the case on whether BCRA could constitutionally ban corporate expenditures on political campaigns within the near election window.

Overruling two important precedents about the First Amendment rights of corporations, a bitterly divided Supreme Court on ruled that the government may not ban political spending by corporations in candidate elections. The 5-to-4 decision was a vindication, the majority said, of the First Amendment’s most basic free speech principle: that the government has no business regulating political speech. Through their argument, however, the majority not only undermined the findings and goals of relevant precedent, but also granted sweeping and unfounded rights to corporations, striking at the core of democratic theory.

Majority’s argument seems to be two-fold: 1) corporations are effectively constitutional persons; 2) corporate independent expenditures are protected political speech.

The Majority’s Argument

1) Corporations are treated as people in the law.

Can a corporation be seen as just another speaker? Modern First Amendment jurisprudence is clear in its appreciation of peoples from different classes, races, and genders: the poor female Jew can speak as loudly as the rich male Muslim. Distinctions among people are non-starters for political speech restrictions. Indeed all people have the same rule on individual expenditures in a campaign. To argue that because of this corporations are treated unfairly is to argue that a corporation is for the purposes of the law effectively a person.

However odd, such claim has substantial grounding in precedent. In Trustee of Darthmouth College v Woodward and in many contracts cases henceforth, the Court has afforded human-like characteristics to corporations; that is to say, the Court has determined some cases and some situations when the law would look at a corporation as a human. This long-standing tradition is what allows individuals to hold corporations liable in civil court as a singular entity. It’s what allows parents of a dead child to sue the manufacturers of a defective toy.

The rationale, for example, in Darthmouth was to enhance the corporation’s ability to contract, and in others, it was to guarantee worker or consumer rights against the corporation. In both cases, however, the rationale was largely economic. The corporation would either be more efficient or more careful in its business practices thanks to its human-like attributes. There had never been purely political reasons for that extension. Corporations were never given a vote, nor was it afforded any kind of democratic respect. We did not accord them rights because we wanted to hear from them; we wanted them to make us more money. In fact, in Austin, the political-based extension was rejected plainly. The Court in Austin lambasted the entry of the corporation into the political arena, because of ”the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas.” Notable here is the disconnect between the corporation’s function as a wealth amassing institution and the its composition of many individuals. That, the Court had said in 1990, was a compelling reason that legislators could use to single out corporations for restrictions on their political activity. This precedent thus stood as a formidable obstacle for the majority to overcome — it would have to not only reject that argument against personhood, but advance its own for it.

Kennedy takes up the task and begins by making it clear that corporations can and do speak. They can speak in many of the same ways people can: they can issue statements, purchase advertising, etc. They share the functional ability to form an opinion and broadcast with humans. And yet for the same kind of speech, the corporation can be criminally punished in the same way individuals can be punished for violations of crimes: “The law before us is an outright ban, backed by criminal sanctions… These prohibitions are classic examples of censorship.”

Since corporations can speak like a person and are punished as if they a person, then they should have the same rights and restrictions on speech such as persons. But this alleged congruence, according to Stevens, seems to hollow out the meaning of human nature. Corporations have no conscience. They have no sense of justice, compassion, or empathy. Their decision-making framework overlaps with only a fraction of man’s. Its interests are exclusively economic and do not include the health and welfare of society. Its acts do not reflect the will of shareholders. More importantly, it is not seeking to join and further the free flow of ideas.

This is not a point Stevens expands on too greatly, but it merits consideration. Kennedy’s argument is premised upon a fear of the “chilling effect” BCRA would have on the open exchange of ideas, particularly political opinions. This is an historic conception of free speech which assumes a kind of commerce of ideas or a marketplace where more speech means more ideas and so more competition for the best one. This echos John Stuart Mill’s argument for the liberal state. In this view, even bad speech is good for the market: it serves as fodder for the better ideas. This market-based conception of free speech motivates Kennedy’s indifference towards both the speaker and the potential for corruption.

Notably, however, corporations in general are not seeking to join that market. They are concerned with commerce of goods, not ideas. In fact, they hope to profit off of ideas, not share them. This is easily seen when contrasting human-human political interaction with corporation-human interaction.

A misinformed voter may wrongly attempt to persuade an ignorant voter. He talks to her, reasons with her, and pleads her to change her mind for her own good. More ideas came forth, they were contested, and potentially both individuals left with better ideas to go and make their own political decisions.

Consider the case, then, of a corporation. If they were to engage in political speech, as well, it would not be as a collaborative member of the discussion but more rather a ideologue espousing only its interests. It cannot be convinced to take up ideas for non-self-interested reasons. It is an economic beast, and completely egotistical. It is a one-way participant by definition and so distinguishes itself from all others. Thus, the more likely recourse is, say, purchasing a television ad on behalf of a candidate simply for his benefit and the corporations. Again, this distinguishes this case from the other. Whereas the ignorant voter may possibly have altruistic motivations, the corporation would not. The ignorant voter watches the ad and then may or may not change her mind. Afterwards, notably, only one actor can go on to use that “interaction” for political decision-making; the corporation cannot.

This presents a rather skewed vision of the open market of ideas: the system is closed, the market stilted, and the ideas decidedly self-serving. More importantly, if Kennedy and others justify—at least in part—this marketplace for its direct benefits to democratic processes—a kind of consequentialist argument—then it seems there are problems for the entire enterprise. Only one party in the corporate-human political interaction can vote, the person, and that vote is potentially skewed against their more human tendencies because of the cold bias in the message. This conception of free speech threatens not only to cheapen autonomy, but also to sand it down.

Stevens flagged these very issues for democratic legitimacy and autonomy in his dissent: “Under the majority’s view, I suppose it may be a First Amendment problem that corporations are not permitted to vote, given that voting is, among other things, a form of speech.” Indeed. It is not too much to expect that lawyers for corporation may well be looking to explore the outer possibilities of their clients’ “personhood” and new-found constitutional equality.

2) Corporate speech serves the interests of the First Amendment.

The Court had to not only deal with the precedents distinguishing corporate from human speakers but also those distinguishing the value of commercial speech and that of political speech. This is not to say the Court had to argue that money and speech are equivalent; this precedent was established in Buckley v. Valeo: “a restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached.” So that while money is not literally speech, it enables and amplifies speech when it is used to buy political advertising and therefore, according to the Court’s logic, money expended for that purpose merits First Amendment protection. Later in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Court for the first time brought commercial speech under the umbrella of constitutional protection on the reasoning that by providing information to consumers it furthers the First Amendment goal of fostering an informed citizenry. Yet a bright line remained between commercial speech and political speech, one deepened in Austin (“the corrosive and distorting effects…”). As Stevens argues in his dissent, the form of speech Kennedy celebrates will corrupt the free flow of information so crucial to the health of a democratic society. “[T]he distinctive potential of corporations to corrupt the electoral process [has] long been recognized.”

The Majority reasoned this principle should be abandoned as paternalistic: to assume corruption is to assume a gullible public. Voters are adults who must be “free to obtain information from diverse sources”; they are not to be fenced in by a government protecting them from information they allegedly could not handle. In his opinion, Kennedy argued that this kind of paternalism that seek to combat gross inequality was contrary to the political structure set up by the Constitution. Leveling electoral opportunities means that the Congress is imposing its own judgments on what candidate capabilities should contribute to the outcome of an election. But Kennedy pointed out, “the Constitution confers on voters, not Congress, the power to choose the Members of the House of Representatives.” Put another way, Congress shouldn’t be able to control who you get information about Congress from—or at a minimum they should have very, very little control.

In that spirit, the Court held that corrupting potential of near election independent expenditures was not sufficiently dangerous as to justify state action. Independent corporate expenditures are not pre-arranged or coordinated with individual candidates, this “undermines the value of the expenditure to the candidate.” Independent expenditures arguably do not lead to quid pro quo corruption. Without coordination, it would be difficult to have—or at least prove—causation. In fact, Kennedy goes further and argues that corporate expenditures would allow more meaningful participation for less wealthy citizens, banding together to support a cause. Their voices would be magnified, not drowned out.

Here again Kennedy follows the open marketplace approach to free speech. Fewer restrictions will create more speech, more sources of speech, and more groups speaking. This, for the free speech accountant, is quite a good thing. However — as I’ve argued— substantial problems for individual rights are at issue in this dynamic.

Consider Tom, the lowly and lonely middle-aged man who works from home, freelancing. Tom has a right to free speech, but all Tom can really do is donate a few dollars to his candidate of choice or to a political action fund. There’s no union he can join, no corporation, no larger for-profit group he can magnify his impact with. All he can do is donate a few dollars. In a way, one might argue that even with restrictions on independent expenditures by corporations, Tom would have little influence on the political election and a—we can say—marginal free speech usage. But, more importantly, when that restrictions his voice diminishes as more actors enter the stage and others group together and grow louder. (There in fact seems to be something deeply worrisome about a theory of free speech that seeks to encourage the loudest to further overwhelm the meek.) The community as a whole may have benefited from this effective transfer. But this would be to undermine that individual’s guarantee of that right.

To illustrate the rights violation in this effective transfer, we can turn to John Rawls theory of political equality. Justice, according to Rawls, demands fairness to persons, conceived of as free and equal. Part of the first principle in his conception of justice as fairness is a requirement of political equality, which presents the implications of this conception of justice for the organization of the political process—including voting rights, and rules for organizing elections and aggregating votes, as well as rights to freedom of political speech; the norm of equal opportunity for effective political influence — what Rawls “the fair value of political liberty”—condemns inequalities in opportunities for influencing influence political decisions. This requirement of fair value of political liberty is modeled on the idea of fair equality of opportunity. The idea is that people who are equally motivated and equally able to play the role of citizen—by exercising their capacity for a sense of justice and aiming to influence collective decisions—ought to have equal chances to exercise such influence, irrespective of economic or social position. For Tom, he would have lost his equal influence on account of both his economic and social position: he lacks the funds or connections to join a more influential group to equalize his impact. The value of his right then is diminished.

On top of this, the Majority’s optimism regarding the corruption seems unrealistic. Independent expenditures ban coordination and planning before a political action by the supporting grow. In no way does this stop the candidate from seeing the advertisements or hearing about them. Nor would it stop the candidate from tracking the influence of those advertisements on her campaign. Did that ad generate a bump in the polls? Did that company end up helping or hurting? These are inevitable questions for a candidate even if the expenditures were independent. A perceptive and appreciative candidate might still be inclined to curry favor his most effective supporters, especially if the contributions were substantially higher than others who just cut him a check. A free media blitz is harder to find than a checkbook. Thus because independent corporate expenditures do in fact seem to unfairly harm individuals and lead to a real possibility of corruption, the Majority’s argument seems insufficient, especially in light of centuries of precedent against them.

Conclusion

Most broadly, however, Citizens United should unsettle democratic citizens not because of its break from precedent or unsound argumentation, but because of its implication. It positions citizens and corporations on the same level, effectively saying that you and me are no different than Comcast or Sears. It considers a corporation’s messaging and marketing as important as your voice and speech, giving Starbucks the same (if not more) influence on a campaign as you.

It is wrong.

It’s time we remember that, “We the People,” still means something.