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.
