Debating 'Citizens United'
by Floyd Abrams
What is it about the Citizens United case that seems to drive so many of its learned critics close to the edge? What is it that now drives my friend Burt Neuborne, a most sophisticated legal observer, to wind up sounding somewhat more like Lady Chatterley's gamekeeper than the esteemed scholar he is?
It certainly shouldn't be the impact of the ruling on the 2010 midterm elections. As the Campaign Finance Institute, a nonpartisan research organization, concluded, "Party and non-party spending to help competitive Democrats and Republicans was about equal across the board. As a result, neither set of expenditures could be said to have tipped the electoral balance."
Nor should Burt be so agitated at the notion that for-profit corporations have First Amendment rights. That was not only well established in the law for many years before Citizens United—again, Justice Kennedy cited twenty-five prior cases in his opinion in which corporations had received full First Amendment rights—but has been essential to the protection of such rights for all.
Burt would limit such rights only to "press" entities. A free press is essential to a free society. But as Justice William Brennan, no slouch in defending First Amendment rights, repeated in an opinion he wrote twenty-five years ago, "The inherent worth of...speech in terms of its capacity for informing the public does not depend upon the identity of its source, whether corporation, association, union, or individual." Justice John Paul Stevens, the author years later of the dissent in Citizens United, joined that opinion, which also rejected out of hand the notion that "speakers other than the press deserve lesser First Amendment protection." Brennan and Stevens (then) were right; Burt isn't.
In the end, though, the issue isn't what speech Burt or I would allow. Or even what speech the Supreme Court should protect. It's what power Congress should have over speech. The McCain-Feingold law and other legislation held unconstitutional in Citizens United contained sweeping bans on speech. They made criminal, as Justice Kennedy pointed out, a Sierra Club ad within sixty days of an election condemning a member of Congress who favored logging in national parks. They barred unions from publishing pamphlets endorsing candidates for president. A ruling that protects such speech should be celebrated, not mocked.
The Censorship Canard
by Burt Neuborne
Not even Floyd Abrams, one of the best lawyers I know, can defend Citizens United. Floyd notes, correctly, that the case does not prevent Congress from requiring disclosure of corporate election expenditures. He fails to note, though, that Congress attempted to do just that but was blocked on a 59-39 Republican Senate filibuster vote. Thirty-nine senators representing a minority of the population are enough to prevent disclosure of corporate election spending. What are the odds that a wholly owned Congress dependent on massive corporate financial support will find sixty votes in the Senate for disclosure?
Floyd argues that First Amendment concern by liberals about corporate election speech isn't new. He cites Truman's veto of the Taft-Hartley Act and liberal justices' (unsuccessful) efforts to protect speech by the CIO and the UAW. He assumes that the First Amendment rights of unions and corporations are joined at the hip. But unions are free associations of individuals who join together to advance their economic and political interests. A union's money comes from its members' dues. If support for a union is required by law, a dissenter is entitled to a refund for any speech with which he or she disagrees. But corporations derive their funds from market transactions having nothing to do with politics. When you put gas in your car or buy a beer, do you think you are making a political contribution? If individuals associated with corporations want to form voluntary associations analogous to unions, that's fine—as long as they use their own money.
The twenty-five prior cases cited by Floyd allegedly recognizing corporate speech rights deal solely with commercial speech designed to flog a corporation's products or to the right of the press to carry on its constitutionally protected activities. Just because we let corporations sell soap and own newspapers doesn't mean we have to turn our democracy over to them.
Finally, Floyd plays the lawyer's trump—the ad horrendum argument—warning that corporate-financed books are next on the censorship radar. He ignores the First Amendment's press clause, which protects corporate publishers. More fundamental, though, he ignores the fact that a book needs a voluntary reader. The law struck down in Citizens United had nothing to do with books. It targeted only those forms of speech—TV and radio ads—that blast their way into your consciousness with no help from the hearer.
In the end, Citizens United licenses a small group of corporate managers to use a vast trove of other people's money to buy elections in secret, using forms of speech that cannot be easily avoided. Although 80 percent of Americans don't want to be bombarded with corporate electoral propaganda, Citizens United insists that unrestricted, massive corporate electioneering is really good for us. Even Floyd Abrams can't make that medicine go down.