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.
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.
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.