Debating 'Citizens United'
One year ago a conservative majority of the Supreme Court opened the floodgates to unlimited independent election expenditures by corporations. This magazine decried the Citizens United ruling as a "dramatic assault on American democracy," and we called for the passage of a constitutional amendment stating that corporations don't have the same rights to political expression as individuals. We stand by that editorial. Tracking the role that corporate money plays in politics is an urgent priority for this magazine, as is championing electoral reform. But we're also committed to airing dissenting opinions. In this case, some First Amendment scholars and groups have supported the Court's decision as being consistent with free speech, and we've asked Floyd Abrams, a respected constitutional lawyer, to express those views. We've also invited another renowned advocate of civil liberties, Burt Neuborne, to reply. Their exchange follows.—The Editors
Remember the First Amendment?
by Floyd Abrams
When the Citizens United decision was released, many commentators treated it as a desecration. People who would enthusiastically defend the free speech rights of Nazis, pornographers and distributors of videos of animals being tortured or killed were appalled that corporations and unions should be permitted to weigh in on who should be elected president.
That the opinion was based on the First Amendment seemed only to add to their sense of insult. Some dealt with that uncomfortable reality by simply ignoring what the opinion said. When President Obama denounced the opinion in his State of the Union address and elsewhere, he made no reference to the First Amendment. And this magazine chose to mention it only once in its four-page editorial in the February 15, 2010, issue ["Democracy Inc."] denouncing the ruling and urging the adoption of a constitutional amendment that would reverse it—an amendment that would, for the first time in American history, limit the scope of the First Amendment.
Now that almost a year has passed since the ruling, it is time to return to what the case actually does and does not say, to distinguish between myth and reality. A good deal of inaccurate press commentary, for example, has asserted that the Supreme Court in Citizens United declared unconstitutional requirements that contributors or other supporters of campaigns be identified, thus leading to "secret" corporate contributions. Not a word of that is true. In fact, the Court said just the opposite, affirming by an 8-1 vote (with only Justice Clarence Thomas dissenting) the constitutionality of Congressionally imposed disclosure requirements because "prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable."
Citizens United had no legal impact on the nondisclosure of the identity of contributors to certain not-for-profit groups organized under Section 501(c)(4) of the Internal Revenue Code, ranging from Moveon.org Civic Action to recent Karl Rove–created conservative entities like Crossroads GPS. That is because Congress has never required such disclosure. It could still do so, but if it doesn't, don't blame Citizens United.
Nor can Citizens United be held responsible for the results of the midterm election. As the Washington Post pointed out on Novem ber 3, in two-thirds of the Congressional races that flipped from Democratic to Republican, more money was spent by the losing Democrat. Viewing all sixty-three races, Democrats and their supporters spent $206.4 million while the generally victorious Republicans spent $171.7 million. So in the first post–Citizens United election, one thing is clear: the much predicted one-sided corporate takeover of the political system did not occur.
Citizens United concluded that the First Amendment bars Congress from criminalizing independent expenditures by corporations and unions supporting or condemning candidates for federal office. Concern about the constitutionality of such a law is not new. The Taft-Hartley Act, passed by an antiunion Republican Congress in 1947, was the first law barring unions and corporations from making independent expenditures in support of or opposition to federal candidates. That law was vetoed by the not-at-all conservative President Harry Truman on the ground that it was a "dangerous intrusion on free speech."
In fact, in those days it was not the conservative jurists on the Supreme Court but the liberal ones who were most concerned about the constitutionality of such legislation. In 1948, in a case commenced against the CIO, the four most liberal justices concluded that whatever "undue influence" was obtained by making large expenditures was outweighed by "the loss for democratic processes resulting from the restrictions upon free and full public discussion." Nine years later, in a case involving the United Auto Workers, a dissenting opinion of the three liberal giants, Justices William Douglas and Hugo Black and Chief Justice Earl Warren, rejected the notion that either a corporation or a union could be limited in its speech because it was "too powerful," since that was no "justification for withholding First Amendment rights from any group—labor or corporate."
The opinion of Justice Anthony Kennedy in Citizens United was written in that spirit. It was rooted in two well-established legal propositions. The first was that political speech, especially political speech about whom to vote for or against, is at the core of the First Amendment. There has never been doubt that generally, as Justice Kennedy put it, "political speech must prevail against laws that would suppress it, whether by design or inadvertence."
The second prong of Justice Kennedy's opinion addressed the issue (much discussed in this magazine and elsewhere) of whether the fact that Citizens United was a corporation could deprive it of the right that individuals have long held to support or oppose candidates by making independent expenditures. In concluding that the corporate status of an entity could not negate this right, Justice Kennedy cited twenty-five cases of the Court in which corporations had received full First Amendment protection. Many of them involved powerful newspapers owned by large corporations; others involved non-press entities such as a bank, a real estate company and a public utility company. Justice John Paul Stevens's dissenting opinion (unlike most of the published criticism of Citizens United) took little issue with this historical record, acknowledging, "We have long since held that corporations are covered by the First Amendment."
The dangers of any statute barring speech advocating the election or defeat of candidates for office were starkly illustrated through the justices' questioning of the lawyers representing the United States. There were two arguments. In the first, the assistant solicitor general defending the constitutionality of the statute was forced to concede that the same logic that the government used to defend the statute would, as well, permit the government to criminalize the publication of a book by a corporation urging people to vote for a candidate. In the second, then–Solicitor General Elena Kagan was required to acknowledge that the government's position would provide constitutional justification for applying Taft-Hartley to criminalize the publication of a political pamphlet. As these quite accurate responses indicated, the notion that no serious First Amendment challenge was raised in Citizens United is itself a myth.
Consider the group that commenced the case and the film it prepared. Citizens United is a conservative organization, partially funded by corporate grants. It prepared and sought to air on video-on-demand a documentary-style movie it had made castigating then–Senator Hillary Clinton when she was viewed as the leading Democratic presidential candidate in 2008. It was an opinionated, tendentious and utterly unfair political documentary—precisely what the First Amendment most obviously protects.
For me, that's the real issue here. Were the five jurists—yes, conservative jurists—right in concluding that this is the sort of speech that must be protected under the First Amendment? Or were the four dissenting jurists correct that the airing of that documentary could be treated as a crime? I know my answer to that question.