Few decisions in the Supreme Court’s history have been more unpopular than its 2010 ruling in Citizens United v. Federal Election Commission, which declared unconstitutional any restrictions imposed on how much corporations can spend on speech related to elections. One poll found that 85 percent of Democrats, 81 percent of independents, and 76 percent of Republicans think the case was wrongly decided. Nineteen states have passed resolutions calling for a constitutional amendment to overturn the Court’s decision, which is routinely blamed for the influx of vast amounts of money into political campaigns, although the lion’s share still comes from individuals, not corporations.
But what precisely did the Court get wrong in Citizens United? The two most common criticisms are that the decision erroneously extended constitutional rights to corporations, and that it improperly treated a restriction on money as a restraint on speech. A resolution adopted in 2011 by the New York General Assembly of Occupy Wall Street, for example, called for a constitutional amendment “to firmly establish that money is not speech, that human beings, not corporations, are persons entitled to constitutional rights, and that the rights of human beings will never again be granted to fictitious entities or property.” These criticisms are so often repeated that they have become virtual gospel to many on the left.
Yet neither of these familiar critiques holds up. Citizens United was hardly the first Supreme Court decision to recognize a corporation’s constitutional rights; corporations have received constitutional protection almost since America’s founding. Indeed, from 1868 to 1912, the Supreme Court heard more than 10 times as many 14th Amendment cases involving corporations as it did cases concerning African Americans. Nor did the decision break new ground in treating restrictions on the amount of money that can be spent on political campaigns as limits on speech itself, and therefore subject to searching scrutiny. The Supreme Court had established that principle more than three decades earlier, in Buckley v. Valeo (1976), which struck down limits on how much individuals could spend on their own independent speech concerning electoral campaigns, while upholding the limits on how much they could contribute directly to candidates.
Corporations have long been granted constitutional rights, including the rights of property and contract, the right to sue in federal court, protection against unreasonable searches and seizures, the right to equal protection and due process of law, the rights of association and speech, and virtually all of the rights exercised by criminal defendants (with the exception of the privilege against self-incrimination). Moreover, there are sound reasons for extending these rights to corporations. Individuals often create corporations to own and sell property or to engage in contractual relations, so to deny these entities property and contract protections would defeat their central purpose. Likewise, if corporations can be criminally prosecuted—and they can—shouldn’t they have the same protections we generally accord to all criminal defendants? And should courts deny the right of association, speech, or a free press to the NAACP, the ACLU, or The New York Times because these institutions are incorporated? It’s simply not evident on its face why the corporate form or the profit motive should be disqualifying with respect to many constitutional rights.