Summary: I believe that Americans today can operate at the same level as did Americans at the founding. In the tradition of the Federal Papers, here is a discussion of the latest and momentus Supreme Court decision. I strongly recommend that all Americans read it, irrespective of your political views. Such actions will by themselves put us on the road to reforming the Republic.
It’s difficult to accurately describe the horrific consequences of the Supreme Court decision in “Citizens United vs. the Federal Election Commission”. I oppose most limits on election spending, but this goes to an extreme in the other direction. It’s the equivalent of empowering free speech by allowing people to falsely scream “fire” in a crowded theater. Conservatives have justified it by just making stuff up about it, the usual form of dialog in 21st century America. This decision does not mark the end of America, but will make the task of reform much more difficult.
The partially dissenting opinion by Justice Stevens clearly describes the situation. Before reading that, here is some gallows humor from Matthew Yglesias’ website (where the comments are usually better than the posts):
Njorl: “If a company incorporated in the US over 35 years ago, it can run for president?”
Why oh why: “If you think it is scary, wait until the Roberts court decides the Second Amendment also applies to corporations. The Goldman Sachs militia will roam the streets of DC looking for Sanders.”
mpowell: “It is ironic how badly American democracy has fallen behind the developed world. When you explain to Europeans how campaigns are funded in the United States, they frequently do not believe you. It’s quite the dark comedy here.”
Update: trenchant analysis from Werther (pseudonym of a Northern Virginia-based defense analyst, one of the best): “High Court Decrees Existence of Corporate Übermensch“, Electric Politics, 22 January 2010.
Today’s main feature
Excerpt from the opinion by Justice John Paul Stevens, with Ginsburg, Breyer, and Stotomayer joining. Links were added, not in the original. I have omitted some of the citations.
Opening
The real issue in this case concerns how, not if, the appellant may finance its electioneering. Citizens United is a wealthy nonprofit corporation that runs a political action committee (PAC) with millions of dollars in assets. Under the Bipartisan Campaign Reform Act of 2002 (BCRA), it could have used those assets to televise and promote Hillary: The Movie wherever and whenever it wanted to. It also could have spent unrestricted sums to broadcast Hillary at any time other than the 30 days before the last primary election. Neither Citizens United’s nor any other corporation’s speech has been “banned,” ante, at 1. All that the parties dispute is whether Citizens United had a right to use the funds in its general treasury to pay for broadcasts during the 30-day period. The notion that the First Amendment dictates an affirmative answer to that question is, in my judgment, profoundly misguided. Even more misguided is the notion that the Court must rewrite the law relating to campaign expenditures by for profit corporations and unions to decide this case.
… The basic premise underlying the Court’s ruling is its iteration, and constant reiteration, of the proposition that the First Amendment bars regulatory distinctions based on a speaker’s identity, including its “identity” as a corporation. While that glittering generality has rhetorical appeal, it is not a correct statement of the law. Nor does it tell us when a corporation may engage in electioneering that some of its shareholders oppose. It does not even resolve the specific question whether Citizens United may be required to finance some of its messages with the money in its PAC. The conceit that corporations must be treated identically to natural persons in the political sphere is not only inaccurate but also inadequate to justify the Court’s disposition of this case.
In the context of election to public office, the distinction between corporate and human speakers is significant. Although they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office. Because they may be managed and controlled by nonresidents, their interests may conflict in fundamental respects with the interests of eligible voters. The financial resources, legal structure, and instrumental orientation of corporations raise legitimate concerns about their role in the electoral process. Our lawmakers have a compelling constitutional basis, if not also a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races.
The majority’s approach to corporate electioneering marks a dramatic break from our past. Congress has placed special limitations on campaign spending by corporations ever since the passage of the Tillman Act in 1907, ch. 420, 34 Stat. 864. We have unanimously concluded that this “reflects a permissible assessment of the dangers posed by those entities to the electoral process,” FEC v. National Right to Work Comm., 459 U. S. 197, 209 (1982) (NRWC), and have accepted the “legislative judgment that the special characteristics of the corporate structure require particularly careful regulation,” id., at 209–210.
Court today rejects a century of history when it treats the distinction between corporate and individual campaign spending as an invidious novelty born of Austin v. Michigan Chamber of Commerce, 494 U. S. 652 (1990). Relying largely on individual dissenting opinions, the majority blazes through our precedents, overruling or disavowing a body of case law including …
The Court’s ruling threatens to undermine the integrity of elected institutions across the Nation. The path it has taken to reach its outcome will, I fear, do damage to this institution. Before turning to the question whether to overrule Austin and part of McConnell, it is important to explain why the Court should not be deciding that question.
Scope of the Case
The first reason is that the question was not properly brought before us. In declaring §203 of BCRA facially unconstitutional on the ground that corporations’ electoral expenditures may not be regulated any more stringently than those of individuals, the majority decides this case on a basis relinquished below, not included in the questions presented to us by the litigants, and argued here only in response to the Court’s invitation. This procedure is unusual and inadvisable for a court. …
III.
The novelty of the Court’s procedural dereliction and its approach to stare decisis is matched by the novelty of its ruling on the merits. The ruling rests on several premises. First, the Court claims that Austin and McConnell have “banned” corporate speech. Second, it claims that the First Amendment precludes regulatory distinctions based on speaker identity, including the speaker’s identity as a corporation. Third, it claims that Austin and McConnell were radical outliers in our First Amendment tradition and our campaign finance jurisprudence. Each of these claims is wrong.
The So-Called “Ban”
Pervading the Court’s analysis is the ominous image of a “categorical ba[n]” on corporate speech. Ante, at 45. Indeed, the majority invokes the specter of a “ban” on nearly every page of its opinion. {citations omitted} This characterization is highly misleading, and needs to be corrected.
In fact it already has been. Our cases have repeatedly pointed out that, “[c]ontrary to the [majority’s] critical assumptions,” the statutes upheld in Austin and McConnell do “not impose an absolute ban on all forms of corporate political spending.” Austin, 494 U. S., at 660; see also … For starters, both statutes provide exemptions for PACs, separate segregated funds established by a corporation for political purposes. {citations} “The ability to form and administer separate segregated funds,” we observed in McConnell, “has provided corporations and unions with a constitutionally sufficient opportunity to engage in express advocacy. That has been this Court’s unanimous view.” 540 U. S., at 203.
Under BCRA, any corporation’s “stockholders and their families and its executive or administrative personnel and their families” can pool their resources to finance electioneering communications. 2 U. S. C. §441b(b)(4)(A)(i). A significant and growing number of corporations avail themselves of this option;29 during the most recent election cycle, corporate and union PACs raised nearly a billion dollars.30 Administering a PAC entails some administrative burden, but so does complying with the disclaimer, disclosure, and reporting requirements that the Court today upholds, see ante, at 51, and no one has suggested that the burden is severe for a sophisticated for-profit corporation. To the extent the majority is worried about record to show how substantial the burden really is, just the majority’s own unsupported factfinding, see ante, at 21–22. Like all other natural persons, every shareholder of every corporation remains entirely free under Austin and McConnell to do however much electioneering she pleases outside of the corporate form. The owners of a “mom & pop” store can simply place ads in their own names, rather than the store’s. If ideologically aligned individuals wish to make unlimited expenditures through the corporate form, they may utilize an MCFL organization that has policies in place to avoid becoming a conduit for business or union interests.
The laws upheld in Austin and McConnell leave open many additional avenues for corporations’ political speech. Consider the …
Identity-Based Distinctions
The second pillar of the Court’s opinion is its assertion that “the Government cannot restrict political speech based on the speaker’s . . . identity.” …
If taken seriously, our colleagues’ assumption that the identity of a speaker has no relevance to the Government’s ability to regulate political speech would lead to some remarkable conclusions. Such an assumption would have accorded the propaganda broadcasts to our troops by “Tokyo Rose” during World War II the same protection as speech by Allied commanders. More pertinently, it would appear to afford the same protection to multinational corporations controlled by foreigners as to individual Americans: To do otherwise, after all, could “ ‘enhance the relative voice’ ” of some (i.e., humans) over others (i.e., nonhumans). {omitted} 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.
In short, the Court dramatically overstates its critique of identity-based distinctions, without ever explaining why corporate identity demands the same treatment as individual identity. Only the most wooden approach to the First Amendment could justify the unprecedented line it seeks to draw.
Our First Amendment Tradition
A third fulcrum of the Court’s opinion is the idea that Austin and McConnell are radical outliers, “aberration[s],” in our First Amendment tradition. Ante, at 39; see also ante, at 45, 56 (professing fidelity to “our law and our tradition”). The Court has it exactly backwards. It is today’s holding that is the radical departure from what had been settled First Amendment law. To see why, it is useful to take a long view.
1. Original Understandings
Let us start from the beginning. The Court invokes “ancient First Amendment principles,” ante, at 1 (internal quotation marks omitted), and original understandings, ante, at 37–38, to defend today’s ruling, yet it makes only a perfunctory attempt to ground its analysis in the principles or understandings of those who drafted and ratified the Amendment. Perhaps this is because there is not a scintilla of evidence to support the notion that anyone the corporate form. To the extent that the Framers’ views are discernible and relevant to the disposition of this case, they would appear to cut strongly against the majority’s position.
… The Framers thus took it as a given that corporations could be comprehensively regulated in the service of the public welfare. Unlike our colleagues, they had little trouble distinguishing corporations from human beings, and when they constitutionalized the right to free speech in the First Amendment, it was the free speech of individual Americans that they had in mind.55 While individuals might join together to exercise their speech rights, business corporations, at least, were plainly not seen as facilitating such associational or expressive ends. …
Austin and Corporate Expenditures
Just as the majority gives short shrift to the general societal interests at stake in campaign finance regulation, it also overlooks the distinctive considerations raised by the regulation of corporate expenditures. The majority fails to appreciate that Austin’s antidistortion rationale is itself an anticorruption rationale, see 494 U. S., at 660 (describing “a different type of corruption”), tied to the special concerns raised by corporations. Understood properly, “antidistortion” is simply a variant on the classic governmental interest in protecting against improper influences on officeholders that debilitate the democratic process.
1. Antidistortion
The fact that corporations are different from human beings might seem to need no elaboration, except that the majority opinion almost completely elides it. Austin set forth some of the basic differences.
Unlike natural persons, corporations have “limited liability” for their owners and managers, “perpetual life,” separation of ownership and control, “and favorable treatment of the accumulation and distribution of assets . . . that enhance their ability to attract capital and to deploy their resources in ways that maximize the return on their shareholders’ investments.” 494 U. S., at 658–659.
Unlike voters in U. S. elections, corporations may be foreign controlled.
Unlike other interest groups, business corporations have been (quoting MCFL, 479 U. S.)
“…effectively delegated responsibility for ensuring society’s economic welfare … [T]he resources in the treasury of a business corporation .. are not an indication of popular support for the corporation’s political ideas. … They reflect instead the economically motivated decisions of investors and customers. The availability of these resources may make a corporation a formidable political presence, even though the power of the corporation may be no reflection of the power of its ideas.”
2. Shareholder Protection
There is yet another way in which laws such as §203 can serve First Amendment values. Interwoven with Austin’s concern to protect the integrity of the electoral process is a concern to protect the rights of shareholders from a kind of coerced speech: electioneering expenditures that do not “reflec[t] [their] support.” 494 U. S., at 660–661. When corporations use general treasury funds to praise or attack a particular candidate for office, it is the shareholders, as the residual claimants, who are effectively footing the bill. Those shareholders who disagree with the corporation’s electoral message may find their financial investments being used to undermine their political convictions.
The PAC mechanism, by contrast, helps assure that those who pay for an electioneering communication actually support its content and that managers do not use general treasuries to advance personal agendas. Ibid. It “allows corporate political participation without the temptation to use corporate funds for political influence, quite possibly at odds with the sentiments of some shareholders or members.”
For more information from the FM site
Reference pages about other topics appear on the right side menu bar, including About the FM website page. Of special relevance to this post:
Posts about the Constitution:
- Forecast: Death of the American Constitution, 4 July 2006
- The Constitution: wonderful, if we can keep it, 15 February 2008
- Congress shows us how our new government works, 14 April 2008
- See the last glimmers of the Constitution’s life…, 27 June 2008
- Remembering what we have lost… thoughts while looking at the embers of the Constitution, 29 June 2008
- A report card for the Republic: are we still capable of self-government?, 3 July 2008
- Another step away from our Constitutional system, with applause, 19 September 2008
- What comes after the Constitution? Can we see the outlines of the “Mark 3″ version?, 10 November 2008
- Are Americans still willing to bear the burden of self-government?, 27 March 2009
- “Lights, Camera, Democracy” by Lewis Lapham, 24 May 2009
- “The Constitution that I interpret and apply is not living, but dead.” – Supreme Court Justice Scalia, 9 June 2009
- More about the tottering structure of the American political regime, 17 August 2009
Afterword
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