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.