Citizens United Was About Freedom Of Speech, Not “Corporate Rights.”

Opponents of the Supreme Court's decision in Citizens United continue to miss the point of what the case was really about.

In a column that dropped on the 4th of July, Michael Kinsley pushes back against much of the criticism from the left over the Supreme Court’s 2010 decision in Citizens United v. FEC:

Citizens United overturned provisions of a law once known as McCain-Feingold, after its main sponsors. The law was “an outright ban, backed by criminal sanctions” (as Justice Anthony Kennedy’s majority opinion explained) on advocating the election or defeat of a candidate, or issuing any other “electioneering communication,” within 60 days of a general election or 30 days of a primary.

As applied to an individual, such a law would be obviously unconstitutional. Endorsement of a political candidate — even if that candidate is yourself — is about as central to the First Amendment as any category of speech can be. The government may restrict campaign contributions if it wishes (as it does), because a contribution isn’t speech and will not necessarily be spent on speech. Money spent promoting yourself or others for public office is speech, and can’t be censored.

Wait a moment, goes the response by every liberal newspaper and website in the nation. Speech by a corporation is different. Corporations are artificial entities, designed and built by the government. They have no more rights than Dr. Frankenstein’s monster. Human beings may decide to organize themselves as a corporation, but even real people don’t have a constitutional right to exercise their constitutional rights in corporate form.

A pretty good argument, I’ve always thought, but it stumbles over media companies (as Kennedy notes at length in Citizens United). If “money isn’t speech,” as many a New YorkTimes editorial has declared, may the government put a limit on how much a corporation can spend publishing a newspaper?

The law Citizens United overturned actually exempted media companies from its spending limits. But the difficulty — impossibility, really — of defining a media company, and explaining why it should have more rights than any other company, suggests that a right granted to one company should be granted to all

On the other side of  the argument, University of Chicago Law Professor Geoffrey Stone proposes a Constitutional Amendment to deal with what he sees as the “problem” ofCitizens United. The Amendment would read as follows:

“In order to ensure a fair and well-functioning electoral process, Congress and the States shall have the authority reasonably to regulate political expenditures and contributions.”.

Of course, Congress already have this authority and they have implemented a plethora of laws that regulate the electoral process and campaign contributions, including disclosure requirements, limitations on contributions, and limitations on expenditures. All the Supreme Court has said in the cases that have looked at such laws going all the way back to Buckley v. Valeo is that Congress and the states must exercise that authority consistent with the protections contained in the First Amendment to the Constitution. Passing a Constitutional Amendment that, in theory, at least, would replace the First Amendment’s protections with a “reasonableness” standard poses significant dangers, as ACLU Legislative Director Laura Murphy points out:

When Professor Stone says federal and state governments “shall have the power to regulate political expenditures,” he means to give them the ability to place limits on, and control the content of, political speech, even when it is non-partisan and independent of a campaign. This speech would include typical “vote for X” ads, but would also extend to political “issue” advertisements (“call Senator Reid and tell him to support bill Y”), documentaries by Michael Moore and other political filmmakers and probably even social media platforms like Twitter or Facebook. The problems with such an approach are many.

The Constitution’s radical stability is its greatest strength. The high bar for amending the Constitution — agreement by two-thirds of both the Senate and the House (or the states), and thenthree-fourths of state legislatures or constitutional conventions — exists precisely to deter ill-considered but temporarily popular amendments, which I would argue this is. People are wary to invest resources and time in promoting or championing constitutional amendments because the chances of failure are high. That’s why our Constitution works so well. It’s easy to interpret broadly, but textual change requires effort and sustained support.

Murphy goes on to note that an Amendment like Stone’s, which roughly mirrors one proposed by Senator Bernnie Sanders and a group of Democratic Congressmen last year, would if ratified by the first Amendment to the Constitution that ever limited a right already specifically protected by the Constitution. That alone should be a reason to view efforts like this skeptically. Just as many, rightly, objected when Congress responded to the Supreme Court’s decision in Texas v. Johnson by proposing a Constitutional Amendment that would outlaw flag burning, or the proposals that many Republicans have recently made for a Constitutional Amendment that would eliminate the 14th Amendment’s guarantee of birthright citizenship, we should be deeply concerned by the implications of a proposed amendment that would, in essence, amend the First Amendment, arguably the very basis of our political and individual freedom. Indeed, upon considering the implications of a world where this Amendment is ratified, one begins to see just how bad an idea it actually is:

[I]magine a world where Stone’s proposed Citizens United amendment serves as real precedent for using the amendment process to limit rights, and both houses of Congress are two-thirds Republican (the latter is not inconceivable even in the next Congress). Flag desecration, victims’ rights and birthright citizenship amendments would just be the beginning. Undoubtedly, you would see additional attempts to limit individual rights through the amendment process simply on the strength of the argument: well, we did it with political speech, why not with pornography, affirmative action, voting requirements, warrantless national security surveillance or any other similarly hot-button issue? You can bet a successful Citizens United amendment would be talking point number one for groups pushing an amendment to overturn Roe v. Wade.

Most of these proposed Amendments likely wouldn’t pass, but some of them probably could, and that is reason enough to decline Professor Stone’s invitation to open this particular Pandora’s Box.

In addition to the concerns about the precedent that Stone’s Amendment would set, it’s clear that his entire argument rests upon a commonly held, yet totally mistaken, view of the Citizens United decision. As Kinsley and Murphy both point out, the Court’s decision in that case was not about “corporate power” or “money in politics.” it was about the fundamental question of speech in political campaigns. The Court was considering the First Amendment implications of a law that, as Kinsley notes, placed an outright ban on any speech by an outside party, corporate or not, that advocated the election or defeat of a specific candidate, or which constituted “electioneering,” within 60 days of an election. In the particular case before the Court, that meant that Citizens United was prevented from making copies of a film about Hillary Clinton that it had made available within two months before an election, nor could it advertise the film on television. The Federal Election Commission had, in essence, placed a prior restraint on publication, something that is frowned up in American law, as the Court had pointed out in the Pentagon Papers case. Indeed, in oral arguments before the Supreme Court on the case the Deputy Solicitor General took the position that the law also meant that the government would have the authority to ban a book that could be considered “electioneering” within 60 days prior to an election, an assertion that many Justices found shocking to say the least. So, in the end, Citizens United wasn’t about corporate rights, it was about free speech, and efforts to “undo” the decision really amount to nothing less than trying to place restrictions on freedom of speech.

But, of course, it is the “corporate rights” argument that is the bugaboo for most opponents of Citizens United, but that’s largely because they seem to fundamentally misunderstand what the whole argument is about. The Cato Institute’s Ilya Shapiro addressed that issue shortly after the decision came out:

[The argument that corporations lack Constitutional rights] demonstrates a fundamental misunderstanding of both the nature of corporations and the freedoms protected by the Constitution, which is exemplified by the facile charge that “corporations aren’t human beings.”

Well of course they aren’t — but that’s constitutionally irrelevant:  Corporations aren’t “real people” in the sense that the Constitution’s protection of sexual privacy or prohibition on slavery make no sense in this context, but that doesn’t mean that corporate entities also lack, say, Fourth Amendment rights.  Or would the “no rights for corporations” crowd be okay with the police storming their employers’ offices and carting off their (employer-owned) computers for no particular reason? — or to chill criticism of some government policy.

Or how about Fifth Amendment rights?  Can the mayor of New York exercise eminent domain over Rockefeller Center by fiat and without compensation if he decides he’d like to move his office there?

So corporations have to have some constitutional rights or nobody would form them in the first place.  The reason they have these rights isn’t because they’re “legal” persons, however — though much of the doctrine builds on that technical point — but instead because corporations are merely one of the ways in which rights-bearing individuals associate to better engage in a whole host of constitutionally protected activity.

That is, the Constitution protects these groups of rights-bearing individuals. The proposition that only human beings, standing alone, with no group affiliation whatsoever, are entitled to First Amendment protection — that “real people” lose some of their rights when they join together in groups of two or ten or fifty or 100,000 — is legally baseless and has no grounding in the Constitution. George Mason law professor Ilya Somin, also a Cato adjunct scholar, discusses this point here.

Corporations, in other words, have rights because they are entities made up of individuals who have Constitutional, and natural, rights. To accept the “no corporate rights” argument, one would also have to accept that individuals lose their rights any time they act as a group toward a common purpose, whether that group is called Citizens United, or the American Civil Liberties Union, or the Southern Christian Leadership Conference. That’s why the Court was largely correct in Citizens United, and why the critics arguments are so dangerous.

FILED UNDER: Law and the Courts, US Politics, , ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. legion says:

    Well, whose speech are we discussing here? If an individual contributes to a politician, it’s pretty clear who is speaking & expressing their opinion. But if a company does the same thing, does it reflect the speech of the shareholders? I can pretty much guarantee shareholders aren’t consulted before such buys are made. Is it the Board? Do they typically make those decisions? What about the executives? they make the day-to-day decisions, but does political endorsement properly fall into that realm? If you can’t tell me whose speech is being suppressed, this stops being a serious issue – just ban it, like Montana did.

    To address Kinsley’s media argument, a media company’s express purpose is to engage the public – that’s their charter, and it’s entirely arguable that the shareholders, in investing in such an enterprise, have explicitly given the company (through whatever functionality) permission to do those sorts of things. But influencing public opinion or political candidates is _not_ the normal, expected function of other companies – maybe PR/lobbying groups, but that’s largely it, and they have their own specific regulations.

  2. Dean says:

    @legion:

    But if a company does the same thing, does it reflect the speech of the shareholders? I can pretty much guarantee shareholders aren’t consulted before such buys are made. Is it the Board? Do they typically make those decisions? What about the executives? they make the day-to-day decisions, but does political endorsement properly fall into that realm?

    You could ask the same questions about a union.

  3. al-Ameda says:

    What I’m curious to see is if states will permitted to pass laws that require the full disclosure of all campaign contributions. More specifically, identify those individual contributors to the large umbrella PACs that contribute monies to various campaigns.

    Will strict disclosure laws be held constitutional?

  4. mantis says:

    A pretty good argument, I’ve always thought, but it stumbles over media companies (as Kennedy notes at length in Citizens United). If “money isn’t speech,” as many a New YorkTimes editorial has declared, may the government put a limit on how much a corporation can spend publishing a newspaper?

    Kinsley forgets a few words from the 1st Amendment: “…or of the press…”

    The Constitution treats “speech” and “the press” as two different things. Media companies are the press, so they are entitled to their own protections under the 1st Amendment. Rejecting the idea that corporations “speak” with money would in no way restrict media companies functioning as “the press.”

    As Republicans argued for years against campaign finance regulations, they promised that if we got rid of them all, transparency would solve everything. Sunlight would be the best disinfectant, and all these regulations would be unnecessary if we have transparency, they told us. Well, now that the Supreme Court has removed a host of regulations on election spending, Republicans have decided transparency is bad and evil and socialist, so forget about it.

    But in 2007, Boehner said on “Meet the Press” that there should be “full disclosure of all of the money that we raise and how it is spent.” And seven years before that, McConnell said on the same show that “Republicans are in favor of disclosure.”

    Now they are both against it, lying sacks of shit that they are.

    So unlimited anonymous spending by whomever is allowed. Foreigners, NAMBLA, Neo-Nazis? Whatever! Do what you want and keep it all secret from the public. Who are we to think we should know who is buying our next election? Stupid citizens. You’re free to spend anonymous billions too! What, don’t have billions? Too bad, dumbasses. Why did you decide not to be rich?

  5. Vast Variety says:

    @Dean: And I would. I would ask it of any organization that spends money on political speech and gets to hide where the funds came from to pay for that speech.

    Without 100% transparency Citizens United has proven to be disaster based on the activities of the SuperPAC’s on both sides.

  6. Tsar Nicholas says:

    Citizens United Was About Freedom Of Speech, Not “Corporate Rights.”

    Obviously. Someone would have to be pretty f’n looped out to argue otherwise. Oh, right, never mind.

    In any event, Citizens United was a useful first step but truth be told the job won’t be complete until that abomination of that McConnell decision flatly is overturned. Hopefully over the next few years we’ll get a new and better SCOTUS and they’ll be able to right that wrong, along with fixing (i.e., erasing) Hamdan, Kelo and several other horrible decisions from the past several years, a few of which just so happened to have been handed down last week.

  7. SKI says:

    @Dean: And I wouldn’t disagree that they should be treated the same.

    Of course, that would mean that the raft of proposals and laws restricting how union dues and funds are used for political expenditures should also be applied to corporations.

  8. mantis says:

    In any event, Citizens United was a useful first step but truth be told the job won’t be complete until that abomination of that McConnell decision flatly is overturned. Hopefully over the next few years we’ll get a new and better SCOTUS and they’ll be able to right that wrong, along with fixing (i.e., erasing) Hamdan, Kelo and several other horrible decisions from the past several years, a few of which just so happened to have been handed down last week.

    I see. So your plan is to get the Supreme Court to overturn a wide array of recent Supreme Court decisions because you don’t like them?

    Man, you are dumb, aren’t you? But then you had already proved that with the first part of your comment.

  9. Console says:

    Meh, Kelo is just an easy political winner. One day Tsar will be extolling the virtues of approving the Keystone pipeline, and the next he’ll be decrying Kelo, without any sense of irony.

  10. OzarkHillbilly says:

    All I can say is “BLAAAAAAAAAAAAAAAAAAHHHHBLAAAAAAAAAAAAAAAAAAAAHHHHH
    BLAAAAAAAAAAAAAAAAAAAAAPPPPP BLUUUUUUUUUUUUUUUURRRRRRPPPPP BLLLEEEEEEEEEEEEEEEEEEEEEPPPPPP LBBLLLLLLLLLAAAAAAAAAAAAAAAPPPPP
    and furthermo CLCLLLLLLLLLLLLLLLAANANNNNNNNNNNNNGGGGGGGGGGGG CRCCCCCCRRRRRRRRRRRRRRRIIIIIIIIIIIIIIIIIIIIIIIIIIIINNNNNNNNNNNNNNNGGGGGGGGG BOOOOOOOOOOOOOOOOOOOOOOOOOOOOOONNNNNNNNNNNGGGGGGGGGGG.

    Hmm, it seems Koch Industries Inc. have bought the internet. I can speak but nobody can hear. So much for my 1st Amendment rights.

  11. Argon says:

    So why can’t I sell my vote? Think of much more economical the process could be…

  12. Gustopher says:

    Corporations aren’t a collection of people, they are a collection of assets, bound by a government granted charter limiting the liability of the shareholder.

    People do not join a corporation, they are employed by a corporation. Even the board is voted in by the shareholders — and while many of them are going to actually be the shareholders, they are still just employees in their acts on the board.

  13. Gustopher says:

    Further, with televised and radioed speech being a limited resource, the right of one individual to speak automatically limits the ability of others to speak — we cannot simply create more frequencies in the spectrum.

    So, it would be reasonable to put in limits to prevent one wealthy individual from effectively monopolizing access to the spectrum.

    Print and Internet are effectively unlimited at the moment, so you wouldn’t have that argument. Cable is a fuzzy middle ground, with a moderately limited collection of stations provided by what is often a regulated monopoly (how many cable companies can you choose from?)

  14. HarvardLaw92 says:

    The decision was entirely consistent with Buckley, and in light of the court’s refusal to consider overturning the same, was the correct decision to have made.

    That doesn’t mean that I agree with it, as I consider Buckley to be deeply flawed (money isn’t speech – it is a means of facilitating speech), but as long as we’re stuck with the fallacy that money equates to speech, then that must be consistently applied to all.

  15. HarvardLaw92 says:

    @Vast Variety:

    Without 100% transparency Citizens United has proven to be disaster based on the activities of the SuperPAC’s on both sides.

    I’m not sure that transparency would even make much of a difference, given that much of the electorate doesn’t seem motivated to make the effort to find out who is funding political ads to begin with. They, like any good reality TV audience, seek out the programs that validate their preconceived beliefs. Without some sort of control over the validity of information that is provided (which is honestly an impossibility in a post-internet world) we’re at the mercy of people willing to lie in order to achieve a goal – and that’s a pretty big category.

  16. Jed says:

    @Gustopher:

    People do not join a corporation, they are employed by a corporation.

    Yep. Press-ganged. No choice whatsoever. The old greeting “So-and-so has decided to join the staff” is completely erroneous.

    This sort of thing really gets on my thungas. It would be infantile if it weren’t so dishonest. Don’t like the corporation? Quit. Register a complaint. Freely assemble with your like-minded peers and demand that your demands be met. Grow up. Just a little.

    Nobody except Mr. Rogers ever promised you happiness. Just that you, and other people who do not think like you do have the right to pursue it. Sorry, all you precious snowflakes out there. Any governmental limit on the people you don’t like will be used to limit you. That’s why ye olde slippery slope is not a fallacy when applied to governmental intrusion. It’s a one-way ratchet. Always has been.

    @OzarkHillbilly: Inanity always gets up-votes. Like a Michael Bay movie that does boffo box-office without having anything to say.

    Do you know the “interrupting cow” knock-knock joke? Perhaps you can replace “cow:” with “Koch:” for your next Margaret Cho impersonation.

  17. mantis says:

    @Jed:

    This sort of thing really gets on my thungas. It would be infantile if it weren’t so dishonest. Don’t like the corporation? Quit. Register a complaint. Freely assemble with your like-minded peers and demand that your demands be met. Grow up. Just a little.

    I agree with you, but the fact remains corporations are in no way obligated to tell their employees how much or where they might spend money in politics. It’s hard to voice your discontent with what the corporation you are part of does when they keep it a secret from you.

  18. Scott F. says:

    @Jed:

    Totally agree with your definition of what it means to be a part of a corporation. Nobody has remain with the corporation if they don’t want to.

    Nonetheless, your definition supports Gustopher’s point and blows a hole the size of Mars in the argument that corporations have a natural right to free speech because they are entities made up of individuals who have banded together to speak with one voice. It’s the boss’ speech only, bankrolled by the efforts of his employees, and if you don’t like it you can just go start your own massive corporation.

  19. “We believe rights inhere in individuals, not in groups.” -Republican Party Platform, 2000.

    Of course, Congress already have this authority and they have implemented a plethora of laws that regulate the electoral process and campaign contributions, including disclosure requirements, limitations on contributions, and limitations on expenditures.

    Which have no effect on Super PACs, and the GOP is fighting tooth and nail to prevent disclosure requirements from being enacted in regards to 501(c)(4) organizations.

    If you think corporatism is bad now, just wait until it takes a dedicated corporate sponsorship or two, or three, etc. to win an election.

  20. @Tsar Nicholas:

    we’ll get a new and better SCOTUS and they’ll be able to right that wrong, along with fixing (i.e., erasing) Hamdan, Kelo and several other horrible decisions from the past several years

    Of course, Hamdan was an absolutely terrible decision. How dare the SCOTUS rule that military commission are improper because the President violated statutory law in the way the commissions were conducted? It’s such a pain when the Supreme Court gets in the way of the unitary executive, isn’t it?

    Out of curiosity, Tsar, do you consider yourself a “constitutional conservative”? If you do, why aren’t you demanding that Hamdi be overturned?

  21. Gustopher says:

    @Jed:

    Yep. Press-ganged. No choice whatsoever. The old greeting “So-and-so has decided to join the staff” is completely erroneous.

    So-and-so has decided that joining the staff is less worse than living under a bridge, or being unable to access health care.

    Hit 40, have some significant medical problems, and then tell me you haveachoice to not work for a corporation. Health care in this country is employer based, with individual policies being a nice mixture of unaffordable and fraudulent.

    You want to survive, you compromise. If you’re lucky, you’re in a spot where you can choose which corporation is least worst, but with unemployment hovering around 10%, not a lot of people have that choice.

    Just because you work for some one, that doesn’t mean that someone speaks for you.

    This sort of thing really gets on my thungas. It would be infantile if it weren’t so dishonest. Don’t like the corporation? Quit. Register a complaint. Freely assemble with your like-minded peers and demand that your demands be met. Grow up. Just a little.

    I suspect you are not really as pro-union as your statement suggests.

  22. Barry says:

    @Dean: “You could ask the same questions about a union. ”

    And the answer from SCOTUS is rather different, isn’t it?

  23. Barry says:

    @Gustopher: “Corporations aren’t a collection of people, they are a collection of assets, bound by a government granted charter limiting the liability of the shareholder.”

    Or more importantly, a government-charted entity (if the collection of assets is gone, the corporate entity still exists, just broke).

  24. @Jed:

    Don’t like the corporation? Quit. Register a complaint. Freely assemble with your like-minded peers and demand that your demands be met. Grow up. Just a little.

    Well, this is a tad dishonest as well. People do not seek employment with a given company for free political association, the way they do when they join an interest group or political party, they do so to earn a living and pay the bills.

    An employee has little influence over the political activities of its employer and it is a rather high price to pay to quit on political grounds and then have to default on the mortgage because another job is not about simple free association.

    I am not saying this is an argument for or against the arguments being made here, but let’s be honest about the fact that employers have some substantial power over their employees.

  25. b-psycho says:

    If the problem is Frankenstein’s monster, you solve it by dismantling the monster, not by censoring the townsfolk.