Debating 'Citizens United'
Corporations Aren't People
by Burt Neuborne
We don't know exactly where the corporate money came from in the midterm elections, or where it went. We know that more than $4 billion was spent by both sides, much of it on negative and misleading advertising. We also know that about $300 million, maybe much more, came from corporate treasuries. And we know that in fifty-three of seventy-two contested Congressional districts and at least three contested Senate races in which corporations heavily backed the Republican candidate over the Democrat, the Republican won. But we don't know how much corporations actually spent, or where, because the disclosure laws broke down and the Senate Republicans blocked every attempt to repair them. And we can only guess at the size of the massive tidal wave of secret corporate money ready to wash away the 2012 presidential election.
We do know this—thanks to the Supreme Court's 5-4 decision in Citizens United granting corporations a First Amendment right to spend unlimited sums to win an election, we are facing a second Gilded Age where American democracy is for sale to the highest corporate bidder. Justice Kennedy's opinion, touted by some as a great victory for free speech, begins with a glaring First Amendment mistake. Kennedy claims that the case is about the constitutionality of discriminating between two categories of First Amendment speakers—corporations and human beings. But that just begs the question. The real issue in Citizens United was whether corporations should be viewed as First Amendment speakers in the first place. The business corporation is an artificial state-created entity with unlimited life; highly favorable techniques for acquiring, accumulating and retaining vast wealth through economic transactions having nothing to do with politics; and only one purpose—making money. Human beings, on the other hand, die, do not enjoy economic advantages like limited liability and, most important, have a conscience that sometimes transcends crude economic self-interest. Those dramatic differences raise a threshold question, ignored by Justice Kennedy, about whether corporations are even in the First Amendment ballpark.
One hundred years ago, confronted by the same question, the Supreme Court ruled that corporations, as artificial entities, are not protected by the Fifth Amendment's privilege against self-incrimination. That's still the law. In 1988 Justice Kennedy wrote that huge corporations do not deserve the self-incrimination privilege because the privilege "is an explicit right of a natural person, protecting the realm of human thought and expression." Kennedy never explains in Citizens United why freedom of speech is not exclusively a "right of a natural person, protecting the realm of human thought and expression." The closest he comes is the argument that voters will somehow benefit from a massive, uncontrolled flow of corporate propaganda. But he never explains how a voter is helped by being subjected to an avalanche of one-sided speech just before an election from a corporation with an unlimited budget and an economic stake in the outcome, especially when the voter often doesn't even know the speech is coming from a corporation.
We invented the business corporation for one reason—its economic potential. It makes sense, therefore, to vest it with constitutional protection for its property. It is, however, a huge and unsupported jump to vest business corporations with noneconomic constitutional rights (like free speech and the privilege against self-incrimination) that flow from respect for human dignity. Robots have no souls. Neither do business corporations. Vesting either with free speech rights is legal fiction run amok.
Nor is it persuasive to argue that since newspaper corporations enjoy First Amendment protection, the electoral speech of oil companies and banks must be similarly protected. The short answer is that the First Amendment has a separate "press" clause that applies to newspapers but not to oil companies or banks. The fact that the First Amendment provides limited protection to commercial speech not only fails to support a general right of corporate free speech; it cuts strongly against it. Precisely because corporations lack human dignity, the Supreme Court has upheld bans on false, misleading and harmful advertising. A similar ban would wipe out most election ads by corporations.
Don't get me wrong. The government had no business trying to suppress the video from Citizens United, a ninety-minute right-wing hatchet job on Hillary Clinton. The video didn't fall under the campaign laws because it was necessary to take the affirmative step of downloading it, the equivalent of taking a book off a library shelf. The need for active collaboration by willing viewers should have ended the Citizens United case before it got started. In addition, the campaign statute applied only if 50,000 eligible voters were likely to view the video. How likely was it that 50,000 Democrats would have affirmatively downloaded a hatchet job on Hillary Clinton just before the primary? Moreover, lower court precedent had already recognized an exemption for electioneering communications with only tiny amounts of corporate funding, such as the less than 1 percent in Citizens United. Finally, the Supreme Court had already carved out a First Amendment safe harbor for nonprofit grassroots groups with de minimis corporate funding.
Justice Kennedy simply leapfrogged the numerous narrower grounds for a decision in order to overrule two precedents and grant as much power as possible to corporate America. Talk about "judicial activism." Given its inconsistent and gratuitous nature, Citizens United is good law only as long as five votes support it. The decision should not be treated as binding precedent once the Court's personnel change. In 2012, anyone?
In fairness, Citizens United only makes an already terrible system worse. Campaign finance law rests on four mistakes made by judges. Taken together they are a democratic disaster. First, the Supreme Court insists that unlimited spending during an election campaign is pure speech, not speech mixed with conduct. Second, the Court insists that avoiding huge concentrations of electoral power is not important enough to justify limits on massive campaign spending by the superrich. Third, the Court insists that while the spending of unlimited amounts of campaign money is virtually immune from government regulation, the contribution of money to a candidate may be restricted. Finally, the Court has ruled that while preventing corruption justifies regulating campaign contributions, it does not justify limiting independent expenditures. The Court simply ignores the sense of obligation—or fear—generated by huge independent political expenditures.
In the world the Supreme Court has built, the very rich enjoy massively disproportionate political power. What's worse, the exercise of that power can now take place in secret and can tap the almost unfathomable wealth available to our newly minted corporate co-citizens. Say "hello" to Citizen Exxon. Almost fifty years ago, Felix Frankfurter warned that we would rue the day we allowed judges to shape American democracy. Maybe he was right. The first decade of this century opened with the Supreme Court's coup in Bush v. Gore, and closed with a putsch granting First Amendment rights to huge corporations to spend as much as they want to buy an election. At the rate the Court is going, soon we will be able to be adopted by a corporation. Maybe even marry one. Until then, I'm afraid we'll just have to settle for being fucked by them.