I tried to read last week’s Citizens United v. FEC Supreme Court decision. I’m not going to lie. I couldn’t make it through. It’s a long opinion and Justice Kennedy just won’t close it out. The man writes with broad strokes and I’ll leave it at that. Stevens’ dissent is no Cliffs Notes opinion either. Regardless, I’m pretty sure I don’t like it.
“Of course, you don’t,” you may say. Progressives don’t like the thought of more corporate control over our laws and elections, and the GOP (& many Dems & corporatists) loves that idea. Simple as that.
Maybe. The resulting outcomes of the decision have been (and will be) discussed ad nauseum. But what about the legal basis + reasoning of the decision? In a nutshell, here’s the practical effect of the 5-4 decision (according to the WSJ):
In regard to Thursday’s decision, it helps to understand what the court didn’t decide. It didn’t rule on an individual’s right to contribute to a federal campaign. Individuals are still permitted to give up to $2,400 to a candidate during the primary and $2,400 to a candidate during the general election. Individuals are also still allowed to give $5,000 to any given political-action-committee. The amount an individual could give a campaign was, yesterday, $115,500 over a two year period. Today it’s the same.
Nor did the court change the law on corporations’ ability to contribute directly to a political campaign. Yesterday, direct contributions to a political campaign were banned. Companies could organize and alert employees to the existence of PACs, but they could not give money out of their general treasuries to PACs. Today, that’s still the case.
What the ruling did, however, was erase bans on corporations’ abilities to spend money in support of a candidate. Yesterday, a company was limited in its ability to create, say, its own television advertisement supporting or ripping a political candidate. Today, there are no limits. So long as a company does not coordinate with a campaign, it can spend as much money as it wants to on a sort of shadow campaign on behalf of a candidate.
Loyola Law School’s Rick Hasen explained it to us this way: “Yesterday, if you wanted to influence the otucome of an election, you had to set up a PAC, contributions int which were limited to $5,000 per individual. But today, things are very differerent. Google or IBM, for instance, can spend an unlimited amount of money in support of a candidate.”
The Court ruled that the 1st Amendment protects these corporations right to Free Speech. While I understand the “personhood” of the Corporation, I didn’t think this meant the Bill of Rights is universally applied to corporations. Some see it differently, and the Court’s decisions over the last few decades have certainly convoluted the issues. The probable outcomes are pretty apparent: More corporate control over government. In particular, there exists the dangerous probability of huge corporate influence, and subsequent conflict of interest, with regard to judicial elections. However, I agree with Glenn Greenwald, who says the following:
Either the First Amendment allows these speech restrictions or it doesn’t. In general, a law that violates the Constitution can’t be upheld because the law produces good outcomes (or because its invalidation would produce bad outcomes).
True enough. But does this fall under 1st Amendment protection?
It’s absolutely true that the Citizens United majority cavalierly tossed aside decades of judicial opinions upholding the constitutionality of campaign finance restrictions. But what does that prove? Several of the liberals’ most cherished Supreme Court decisions did the same (Brown v. Bd. of Education rejected Plessy v. Ferguson; Lawrence v. Texas overruled Bowers v. Hardwick, etc.). Beyond that, the central principle which critics of this ruling find most offensive — that corporations possess “personhood” and are thus entitled to Constitutional (and First Amendment) rights — has also been affirmed by decades of Supreme Court jurisprudence; tossing that principle aside would require deviating from stare decisis every bit as much as the majority did here. If a settled proposition of law is sufficiently repugnant to the Constitution, then the Court is not only permitted, but required, to uproot it.
Greenwald’s states that the century of campaign finance laws limiting corporate contributions to elections hindered free speech. However, Greenwald does little to address the precedent, other than to imply he’s a 1st Amendment absolutist. David Kairys disagrees:
The court’s main rationale is that limits on using corporate treasuries for campaigns are a “classic example of censorship.” To get there, Kennedy depends on two legal theories that blossomed as constitutional principles in the mid-1970s: money is speech and corporations are people. Both theories are strange, if not simply wrongheaded—why, according to the Constitution or common sense, would money be speech or corporations be people? The court has also employed theories not uniformly but, rather, as constitutional cover for dominance of the electoral system by corporations and by the wealthy.
Part of the weird dichotomy is as the Court expands the Constitution to protect “rights” of corporations, recent decisions demonstrate a pattern of contracting the Constitutional rights of individuals.
The first theory appeared in a 1976 decision, Buckley v. Valeo, which invalidated some campaign-finance reforms that came out of Watergate. The Court concluded that most limits on campaign expenditures, and some limits on donations, are unconstitutional because money is itself speech and the “quantity of expression”—the amounts of money—can’t be limited.
But in subsequent cases, the conservative justices who had emphatically embraced the money-is-speech principle didn’t apply it to money solicited by speakers of ordinary means. For example, the court limited the First Amendment rights of Hare Krishna leafleters soliciting donations in airports to support their own leafleting. The leafleting drew no money-is-speech analysis. To the contrary, the conservative justices, led by Chief Justice Rehnquist, found that by asking for money for leafleting—their form of speech—the Hare Krishnas were being “disruptive” and posing an “inconvenience” to others. In other words, in the court’s view, some people’s money is speech; others’ money is annoying. And the conservative justices have raised no objection to other limits on the quantity of speech, such as limits on the number of picketers.
Are Corporations entitled to the same Free Speech protections as individuals? What are the 1st Amendment rights of individuals these days?
In Citizens United, Justice Kennedy discusses business corporations as if they were clubs or political associations with political viewpoints and elected leaders. But corporate managers don’t function as representatives or employees of shareholders, who have no say, no shared political views, and no expectation that their investments will be used for political ends. In the wake of the court’s ruling this week, will some corporations pick a party or politics while others channel unheard of amounts of money to both major parties? Will investors be influenced by a corporation’s political portfolio?
The Citizens United decision will make it harder to achieve reforms opposed by major corporations and change business as well as politics. Increasing the constitutional rights of corporations beyond their business purposes is really about increasing the rights and power of corporate managers. Government has enabled corporate managers to control huge accumulations of wealth without any personal risk—an arrangement that contributes to wild, bubble-producing economic swings and collapses. Citizens United invites that arrangement directly into politics and elections.
Both of these theories—that money is speech and that corporations are people—have an easier time than they should in courts and with the public, too, because they are posed as counters to censorship. Many of us, including me, haven’t seen a free-speech argument we don’t like, at least initially.
But some perspective: We limit speech—when it has nothing to do with wealthy people spending money—in many ways. (It wasn’t protected at all until the mid-1930s.) You famously can’t shout fire in a theater. You not-so-famously can’t break the theater’s rules, including rules about speaking, because you don’t really have any First Amendment rights in a privately owned theater or at work. The First Amendment limits only government. And even where it is fully protected, free speech has not been absolute; it’s subject to regulation when it undermines basic societal interests and functions, like voting and democracy. In the last few decades, the conservative justices dominating the court have also limited speech rights for demonstrators, students, and whistle blowers. They have restricted speech at shopping malls and transit terminals. Taken as a whole, the conservative court’s First Amendment jurisprudence has enlarged the speech rights available to wealthy people and corporations and restricted the speech rights available to people of ordinary means and to dissenters.
Are there any limits on the 1st Amendment Rights of corporations? As Tom Geoghegan writes in his excellent book, See You In Court…
…There is a growing view on the right that business has a First Amendment right to lie to people. Or at least that it is illegal, and maybe even unconstitutional, for government to pass a law prohibiting or regulating fraud…Some law professors on the right, like Charles Fried of Harvard, argue that this is one of the greatest legacies of the Rehnquist court. It’s the principle of business free speech. It starts with the right to deceive. In one ERISA case, Varsity Corp v. Howe et al. (1996), workers sued a business for lying to them to take an illusory pension-type benefit. To defend its right to mislead the workers, the company brought in the country’s greatest First Amendment lawyer, Floyd Abrams…
His client lost – but only by 5 to 4. With the new Court, he’d probably win the case today.
That is ridiculous. In Illinois, corporations like State Farm are already buying judicial elections and the verdicts that come with their pocket-judges. Since the corporations are technically not affiliated with these campaigns, many of these judges won’t recuse themselves from their assigned cases brought by or against their campaign funders.
I don’t want to go over-the-top. The reality is that even prior to this decision, Multi-National Corporations already exert more influence on our government than ever before. The corporatists and the plutocrats rule. All one has to do is look at how fast the government came to the rescue of Wall St. while the middle class is left to implode. Still, the thought of more government control by multi-national corporations who ship jobs overseas, open up foreign shells to avoid paying taxes, and already own our political process can only be seen as discouraging to American democracy.