I wrote this paper about the Citizen’s United case for my Free Speech class. It was probably the best class I took while at Hamilton.
President Obama’s 2010 State of the Union Address was the cause of some political controversy when Obama criticized the Supreme Court’s recent decision in Citizens United v. Federal Election and Justice Alito was seen mouthing the words “not true.” Traditionally, the President does not criticize current politics as directly as was done here, and Justices of the Supreme Court are to remain unbiased throughout the speech, yet Citizens United spurred both men to abandon decorum. This incident was just one public example of the stir that Citizens United v. Federal Election Committee has caused. Republicans and Democrats alike have been divided on the ruling, and it has spurred argument and controversy in Washington like few other recent cases have. The case originated when conservative advocacy corporation Citizens United was denied the right to air Hillary: The Movie, a biased political communication so close to Election Day. Citizens United overruled Austin v. Michigan Chamber of Commerce and parts of McConnel v. Federal Election Committee so as to invalidate § 441b of the Bipartisan Campaign Reform Act of 2002 that put limitations on electioneering communications made by corporations. Now, large corporations are free to spend unlimited amounts of their money on campaigns with essentially no restrictions. Citizens United was incorrectly decided because rather than expand First Amendment rights, it rectifies a problem that was never substantial to begin with, and favors the rights of corporations over the interests of real American citizens to the detriment of the later.
In the majority opinion for Citizens United, the Court was concerned about the silencing of corporations, as “the Government may regulate corporate political speech through disclaimer and disclosure requirements, but it may not suppress that speech all together.” (Kennedy p.28) This indicates a fundamental misunderstanding of the direct issue at play. Corporations were not being banned from engaging in political expression; they in fact had a variety of options available to them that balanced First Amendment rights with very real antidisortion concerns. Indeed, as Justice Stevens noted in his dissent, “the majority’s incessant talk of a ‘ban’ aims at a straw man.” (Stevens, dis. op. p.34)
In this case, Citizens United could have simply aired their documentary earlier, before the sixty-day period prior to the election prohibiting electioneering. Corporations also have access to political action committee, or PACs. PACs are separate funds established by a corporation for political purposes. Their money comes from individuals within the company, and the company’s treasury is only allowed to cover administrative funds. PACs allow for corporations to engage in political speech in a fair, albeit somewhat necessarily roundabout way. This, until Citizens United, was unanimously considered by the Court to be “a constitutionally sufficient opportunity to engage in express advocacy. (Stevens, dis. op. p.34) In fact, Citizens United’s PAC was one of the most robust PACs in Washington, and would surely have been able to legally broadcast Hillary. The majority in Citizens United makes the claim that PACs are difficult and expensive to manage, making them poor substitutes for direct spending. (p.29) The dissenting opinion countered, saying that there was no evidence supporting the majority’s claim, and that the minority had confidence that large and powerful corporations could easily manage the relatively limited complications that come with PACs. The issue is not one of banning or censorship, but more akin to “a source restriction, or a time, place, and manner restriction,” (Stevens, dis. op. p.34) the type of which the Court is allowed to impose.
Contrary to the majority opinion, corporations do in fact have means through which to engage in political speech, with some restrictions. To do away with these restrictions, as was the case in the Citizens United ruling, unnecessarily increases the speech of corporations at the expense of the rights of real people. The average citizen cannot hope to compete with the unrestricted influence and speech of a large, powerful and extremely wealthy corporation. Since the rights of the people should be paramount, it is in the Courts interest to keep corporations from overly warping debate and politics. The majority notes that “Buckley rejected the premise that the Government has an interest ‘in equalizing the relative ability of individuals and groups to influence the outcome of elections.’” (p. 30) But corporations are certainly not individuals, and due to the way the law treats them they are more than a simple group. Corporations are a different creature all together, and if able to run amok are able to influence the system in extremely damaging ways. Austin found that this potential for unbalanced influence combined with corporations unique standing supported taking steps to regulate their voices, so as to keep political discourse and elections somewhat fair.
The majority objected to the antidistortion rational due to the fear that it could expand to media corporations, as media and news organizations are allowed to engage in electioneering. This argument is weakened given that the antidistortion rational, as put forth in Austin does not apply to media corporations. Furthermore Citizens United was not a case about restrictions on media. Citizens United itself is certainly not a media corporation, and concerns about regulations on the press were beyond the scope of the facts of the case. There are concerns to be had about the increasingly blurry line between media owners and other conglomerates (Anderson p.38,) but they are of less import than the immediate question at hand, and fear of this tangential issue lead to a misruling.
Perhaps the most directly observable negative effect of the Citizens United ruling is the increased ease for corruption in government to occur, both real and perceived. The Court has always, at least until this point, been wary of the ability of money spent on campaigning by corporations to have undue influence on an officeholder. The majority notes that there are already bribery laws in place to prevent such influence, but they only address the small, extreme end of the spectrum. Bribes in the quid pro quo sense are only the most blatant ways in which electioneering money can influence politicians. If, for example, a senator wants to make legislation banning soft drinks in schools for health reasons, they might be less inclined to do so knowing that Coca-Cola has the ability to freely spend millions on advertisements against him. If corporations were able to spend freely on electioneering, due to their wealth and influence, they would distort the process and would have much more impact on election results. Allowed to spend money unencumbered by regulations, corporations are much quicker to inform (or threaten,) politicians about ads they are going to run. It is not nearly as easy as the Court assumes to determine what is or is not corruption, and the lack of restrictions allowed by Citizens United makes the potential for corruption much more likely. As a result of the decision, Justice Stevens grimly noted that “Starting today, corporations with large war chests to deploy on electioneering may find democratically elected bodies becoming much more attuned to their interests.” (Stevens, dis. op. 36)
The majority’s insistence on defending and expanding the rights of corporations in light of the harm it does to individuals is somewhat worrisome, as it seems to overlook an unarguable fact; that corporations are not people. Corporations are hugely important aspects of American society, and they are created by and consist of people, but this does not make them the same, and the Court does Americans a disservice be equating the two. In Austin, the Court laid out the differences between corporations and people, differences that have since been ignored. Corporations have benefits and drawbacks specific to them. Unlike real people, corporations have limited liability, they are able to draw and spend capital at a rate unachievable for an individual, and they do not die, to say nothing of the fact that they have none of the characteristics traits of real individuals. Corporations are more powerful than the sum of their parts, and enjoy a certain level of security and wealth. As Justice Stevens noted “corporations help structure and facilitate the activities of human beings, to be sure, and their ‘personhood’ often serves as a useful legal fiction. But they are not themselves members of “We the People” by whom and for whom our Constitution was established.” (Stevens, dis. op. p.36) It is fair then, given their unique legal status and the fact that our government is not for their benefit, that corporation’s First Amendment rights can be restricted, though as mentioned before not stripped entirely. Given that they are not people, and do not have an explicit right to First Amendment protection, the majority’s rational that “the State cannot exact as a price of those special advantages the First Amendment rights,” (p. 31) seems misplaced.
To conceive of corporations as people presents other problems as well. A person is obviously an individual, of one voice and opinion. Corporations are made up of any number of people, ranging from shareholders to managers to workers. The Court fails take the question of who is speaking into consideration when dealing with corporate speech. A concern here is that shareholders of a corporation could very easily see themselves in a position where their money is being spent by the corporation in ways that do not reflect their individual political views, a problem that PACs avoid. Corporations may be made up and by people, but they do not reflect the views of the people in the way the Court imagines them to, and expansion of corporate speech rights can be a negative for members of the corporation that do not share the majority views.
Critics of this line of reasoning argue, that if this is so pressing a concern, why are we not worried about misrepresentation outside of the sixty-day window when corporations can more freely spend their shareholders money. (p. 33) This is a good point, but it overlooks the increased importance and frequency of electioneering closer to the Election Day, when that misspent money is more likely to be spent and have an impact on politics. The majority also found it irrelevant that corporate speech might not match public support for the speech, noting that all speech, including that which comes from individuals involves money that likely came from many different hands. (p.31) This once again ignores the unique and powerful qualities of corporations, and the scope of their spending activities. Additionally, the argument that dissenting shareholders could chose to withdraw their financial support from corporations that do not share their views is grossly oversimplified and unreasonable. The average citizen is not in direct control of their investments, nor are they usually in a position to withdraw it at the drop of a hat, or in this case, an advertisement.
The Court also argued that speech cannot be restricted based on the speaker’s identity, that corporations cannot be singled out and uniquely restricted. This is just simply not true. To start, it once again assumes an identity when dealing with a corporation, as always a dubious analogy. More substantively, it ignores a laundry list of examples provided by the dissent of the Court doing exactly that and enacting viewpoint-neutral restrictions. Justice Stevens notes that the government has laws that regulate government employees’ contributions to campaigns, laws that ban the display of campaign signs near a polling place, and restrictions on foreign party spending, to name just a few. (p. 35)
In addition to the actual facts of the case, the Court went about the actual business of deciding Citizens United improperly. When presented with a case involving Hillary: The Movie, an on demand documentary made by an advocacy corporation, the Court went back and overturned over a century of precedent and a recent bipartisan law dealing with business corporation’s ability to run political advertisements. Perhaps, as Steven Shiffern muses, the Court should have taken a more narrow interpretation like they took in FEC v. Massachusetts Citizens for Life. (Shiffren, p.38) The Court seemed to be using Citizens United as an excuse to engage in judicial activism regarding the issue of business corporations, rather than adhering to the principles of judicial restraint and stare decisis. Furthermore, in overturning the Bipartisan Campaign Reform Act of 2002 the Court struck down laws about maintaining fair and uncorrupted elections that were made by officials who were actually elected, and had first-hand experience with the issue at play. Granted, the Court by its very nature often deals with matters it is not expressly familiar with, but the assumption made by the Court that they were more tuned into corruption issues in elections than the people who were actually elected is somewhat irksome, and contribute to the idea that the wrong group was given focus and favor in the deciding of this case.
For a free speech absolutist, the answer to most First Amendment questions is almost invariably “more speech,” and a reduction of restrictions and limitations on citizen’s First Amendment rights. Citizens United is different. The removal of restrictions on corporate political speech does not benefit the people. It serves only to strengthen the disproportional influence powerful corporations have despite the adequacy of their preexisting outlets for speech. It leads to corruption and a government that caters not to the will of its people but to its rich corporations. Citizens United illustrated a failure to understand not only the case presented before the court, but also the fundamental difference between people and corporations and the harm that such a misunderstanding causes on a nation. For these reasons, Citizens United was wrongly decided, and if these problems are not addressed, is destined to go down as one of the more infamous Supreme Court decisions in recent history.