Let me begin with a special thanks to John Field who has co-taught with me a seminar in Constitutional Law at the University of Rochester during three of the past four years and did the research and wrote the first draft of these remarks.
In the eyes of the law, a person is not limited to a natural person or human being, but in the manner of Humpty Dumpty informing us that words mean what I say they mean, a person can be a defined term meaning what a statute, rule or contract chooses the term to mean. For example, in Section 3(a)(9) of the Securities Exchange Act, “[t]he term person means a natural person, a company, government, or political subdivision, agency or instrument of a government.”
The Constitution is different. The terms “person” and “citizen” are used, but are not defined. In cases dating back to 1809, this has led to litigation over whether a corporation is a person, which really means less about the philosophical conception of what a corporation is and ultimately means a great deal about a corporation’s legal rights.
In Citizens United v. Federal Election Commission, a 5-4 majority of the Supreme Court held that the Bipartisan Campaign Reform Act of 2002 violated the First Amendment by prohibiting corporations from using their general treasury funds to finance broadcasts that urge voters to elect or defeat a candidate that are aired within one month of a federal general election or two months of a federal primary election because a corporation had First Amendment rights similar to a legal person.
Citizens United was an incorporated not-for-profit entity that sought to distribute and advertise a “documentary”-style video that it had produced about Hillary Clinton – then a candidate for the Democratic Party nomination for President. The video, called “Hillary, the Movie,” was produced using corporate funds, independently of any candidate or political party. It was, in the Supreme Court majority’s words, pejorative of Senator Clinton, and plainly urged the public to vote against her.
The Supreme Court majority decision almost instantly prompted intense criticism, including President Obama’s assertion that he would seek to appoint Supreme Court Justices who know “that in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens.” There was a wide spread belief that Citizens United represented a major shift in the law.
I too believe that the case was wrongly decided, but I also believe thatCitizens United is primarily important because of what it tells us about the law of campaign finance and much less important because of what it holds about the corporation’s personality under the Constitution. To be sure, any intimation in the majority decision or a concurring opinion by Chief Justice Roberts, that it was the original intent of the framers of the Constitution to equate a corporation with a natural person in our Constitution is flat out wrong.
“We the People,” who adopted the Constitution were natural persons. In the Constitution as adopted in 1787, there are several references to a “citizen” or “person.” But there is no basis in the Constitution or its limited legislative history to support any suggestion that either reference meant anything other than a human being. The most significant question concerning a corporation in the period before the Civil War was whether the Constitution authorized Congress to create a corporation. While the Constitution does not mention the word “corporation,” Chief Justice Marshall famously implied this power in 1819 in M’Culloch v. Marylandunder the “necessary and proper” clause. The corporation, as Marshall wrote in a different 1819 decision was a means to other ends, “an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it.”
The enactment of the First Amendment in 1791 did not alter this limitation of Constitutional rights to natural persons. The First Amendment refers to “the people” with no suggestion in any contemporaneous document that it was meant to include entities such as partnerships or corporations.
In the early days of our country, the business corporation was regarded as an entity that existed only by the grace of the legislature – the corporate charter was a privilege bestowed by the state. This is known as the concession theory of incorporation.
There were very few business corporations in the United States when the country began.
But, as with other areas of law, our concept of the corporation and its place in society changed dramatically.
In the first half of the 19th century, the industrial revolution prompted an explosion in the number of business corporations and business activity generally. For example, the completion of the Erie Canal resulted in a ten-fold increase in the flow of goods between New York City and Buffalo. In the 20-year period from 1840 to 1860, the total amount of developed railroad track increased ten-fold from 3,000 miles to 30,000 miles. The telegraph, which was in use by the 1840’s, for the first time allowed for instantaneous communications across vast distances.
Simultaneously, during the first decades of the 1800s, the general incorporation laws that permitted anyone who satisfied minimum capital and other requirements to form a corporation were enacted. In other words, the concession theory of incorporation was succeeded by a much greater ability for anyone to form a corporation.
The Supreme Court in the 1817 Dartmouth College case strengthened the legal position of the private business corporation by holding that a state legislature could not repeal a corporation’s charter without violating the Constitution’s prohibition on impairing contracts. This was a key restriction on the legislature.
The Supreme Court early also grappled with the corporation as a person or citizen under the Constitution.
The Marshall Court held in 1809 that a corporation was not a “citizen” within the meaning of Article III which deals with the judiciary and could not litigate in its own name and right in federal court. In 1844, however, the Supreme Court, in part, reversed this decision and held in Louisville, C. & C.R. Co. v. Letson, 43 U.S. 497, 559 (1844), that a corporation was a “citizen” of a State within the meaning of Article III, Sec. 2 of the Constitution, and could be sued in federal court. While the term “citizen” evokes powerful significance in our country, this holding under one provision of the Constitution had the limited result of making our federal courts accessible for lawsuits against business firms in roughly the same way that litigation could occur against a natural person.
A key expansion of the corporation’s constitutional rights occurred after the enactment of the Fourteenth Amendment in 1868. The post-Civil War enactment of the Fourteenth Amendment often has been characterized as the second great formative moment in our constitutional history. The Fourteenth Amendment guarantees that no State may deprive any person of life, liberty or property without due process of law, or deny to any person equal protection under the law.
In a much cited 1932 law review article, Howard Graham explained:
In an argument before the Supreme Court of the United States in 1881 Roscoe Conkling, a former member of the Joint Congressional Committee which in 1866 drafted the Fourteenth Amendment, produced for the first time the manuscript journal of the Committee, and by means of extensive quotations and pointed comment conveyed the impression that he and his colleagues in drafting the due process and equal protection clauses intentionally used the word “person” in order to include corporations. “At the time the Fourteenth Amendment was ratified,” he declared, “individuals and joint stock companies were appealing for congressional and administrative protection against invidious and discriminating State and local taxes. One instance was that of an express company, whose stock was owned largely by citizens of the State of New York …” The unmistakable inference was that the Joint Committee had taken cognizance of these appeals and had drafted its text with particular regard for corporations.
This became popularly known as The “Conspiracy Theory” of the Fourteenth Amendment, 47 Yale L.J. 371 (1938), and while it is debatable whether Conkling’s history was entirely accurate, the more important point is that the Congress and the courts indeed were wrestling with the challenge of how to prevent states from discriminating in their taxation against out-of-state firms. In the 20th century, the conventional legal analysis would be to invoke the interstate commerce clause of the Constitution which frequently has been held to prohibit this type of discriminatory treatment. Cf. Ronald Rotunda, Modern Constitutional Law ch. 4 (9th ed. 2009).
In the 19th century, this doctrine was not established and in 1886, the Supreme Court announced its agreement with the principle that a corporation was a “person” within the meaning of the Equal Protection clause of the Fourteenth Amendment in the case of County of Santa Clara v. Southern Pacific Rwy. Co., 118 U.S. 394 (1886). The case involved a dispute over property tax assessments against railroads. Although the case was decided on non-constitutional grounds the Court thought it so obvious that the railroads were “persons” within the meaning of the Fourteenth Amendment’s Equal Protection Clause that it declined even to hear argument on this point.
In subsequent decades, there were other decisions that held that a corporation was a person for specific provisions of the Constitution. In 1889, for example, the Supreme Court held that corporations were persons for purposes of the Due Process clause of the Fourteenth Amendment. See, Minneapolis & S.L.R. Co. v. Beckwith, 129 U.S. 26 (1889).
In United States v. Martin Linen Supply Co., 430 U.S. 564 (1977), the Court applied the Fifth Amendment protection against double jeopardy to a corporation.
In Armour Packing Co. v. United States, 209 U.S. 56 (1908), the Court held that a corporate defendant was an “accused” within the meaning of the Sixth Amendment right to a jury trial.
At the same time, no one has ever suggested under our Constitution that a corporation is “person” or “citizen” for every provision of the Constitution. A corporation can not vote or hold office since these provisions so obviously only apply to natural persons.
For our purposes, the most important Constitutional question with respect to corporate “personhood” concerns the First Amendment and its freedom of speech, freedom of the press, and implicit freedom of association.
The First Amendment has never been an absolute right. While speech is extraordinarily broadly protected in this country, the Supreme Court has supported limits on this freedom in cases involving advocacy of illegal conduct when “such advocacy is directed to inciting or producing imminent lawless action and is likely to produce such action,” Brandenburg v. Ohio, 395 U.S. 444 (1969), the modern articulation of Justice Holmes “clear and present danger” test, Schenck v. United States, 249 U.S. 47 (1919).
Other cases have limited obscenity, Roth v. United States, 354 U.S. 476 (1957); limited speech in terms of “time, place and manner” so that, for example, you cannot play boom boxes in residential areas in the middle of the night, ROTUNDA, supra. ch. 10-3; or preventing the uttering of “fighting words” likely to precipitate immediate violence. See, e.g., Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).
But the most striking part of our First Amendment law is how protective it is of our citizen’s right to speak. As Justice Brennan memorably wrote inTexas v. Johnson, 491 U.S. 397 (1989), “If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. We have not recognized an exception to this principle even where our flag has been [burned].”
If a corporation is a person equal to a natural person for the purposes of the First Amendment, it would be entitled to this same broad freedom.
The Supreme Court’s approach to corporate free speech rights usually has been much more nuanced.
In 1976, the Supreme Court firmly placed what is called commercial speech within the ambit of the First Amendment in Virginia Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976). In that case, Virginia banned pharmacists from advertising prices. A group of nonprofit organizations sued, claiming that the First Amendment protected the rights of consumers to receive information that pharmacists wished to convey about their drug prices. The Supreme Court applied First Amendment protection to commercial information, invoking a free market analysis:
So long as we preserve a predominantly free enterprise economy, the allocation of our resources in large measure will be made through numerous private economic decisions. It is a matter of public interest that those decisions, in the aggregate, be intelligent and well informed. To this end the free flow of commercial information is indispensable.
Id. at 765.
In reaching its decision, the Court was untroubled by the fact that the plaintiffs were not the “speakers” whose message was being suppressed by the Virginia statute (that is, the pharmacists), but rather the “listeners” or recipients of the information at issue. According to the Court, First Amendment protection is afforded “to the communication, to its source and to its recipients both.” Id. at 756.
Four years later, the Supreme Court extended First Amendment protections to a for-profit corporation in Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of New York, 447 U.S. 557 (1980). In that case, an electric utility corporation challenged a New York law that prohibited advertising promoting the use of electricity. Noting that the First Amendment’s “concern for commercial speech is based on the informational function of advertising,” the Court recognized the corporation’s right to engage in commercial speech, and invalidated New York ban on promotional advertising.
In Central Hudson, the Court took the opportunity to refine its First Amendment analysis of commercial speech. The Court characterized commercial speech as subject to a lesser protection from Government regulation than other forms of speech. For example, the government can prohibit the sale of securities to the public before they have been registered and reviewed by the Securities and Exchange Commission.
Then why protect commercial speech at all? Not so much because it is a right of a corporate person, but because it better informs a nation of consumers. The status of “person” for the corporation essentially is a means to that end.
This brings us then to the key question in the Citizens United case, which involved the application of the First Amendment to campaign finance law.
Since the 1907 enactment of the Tillman Act, corporations have been barred from making contributions to political parties or candidates “in connection with any [federal] election to any political office.”
In 1910, Congress enacted the Federal Corrupt Practices Act. See 36 Stat. 822. The disclosure requirements of the Federal Corrupt Practices Act were upheld by the Supreme Court in Burroughs v. United States, 54 U.S. 287 (1934), as a Constitutional exercise of Congressional power to prevent corruption in elections:
The power of Congress to protect the election . . . from corruption being clear, the choice of means to that end presents a question primarily addressed to the judgment of Congress…. Congress reached the conclusion that public disclosure of political contributions, together with the names of contributors and other details, would tend to prevent corrupt use of money to affect elections. The verity of this conclusion reasonably cannot be denied.
Id. at 547-48.
The prohibition against corporate contributions in elections was expanded in 1947 by the Taft Hartley Act to also ban “expenditures” by corporations, as well as contributions and expenditures by labor unions, made “in connection with” any general and primary election for federal office. See 61 Stat. 136, at section 304.
There the law stood until Watergate when the Federal Election Campaign Act, 86 Stat 3, added significant further detail to the law of campaign finance.
Among many other provisions, the Federal Election Campaign Act limited political contributions to $1,000 per candidate per election, limited independent expenditures “relative to a clearly identified candidate” to $1,000 per year, imposed reporting and public disclosure requirements for contributions expenditures, and established a new federal agency, the Federal Election Commission.
Supreme Court decisions in the period after enactment of the Federal Election Campaign Act stressed two quite different themes.
When the Federal Election Campaign Act itself was challenged on First Amendment grounds and came before the Supreme Court in 1976 inBuckley v. Valeo, 424 U.S. 1 (1976), the Supreme Court found a constitutionally sufficient justification for the $1,000 contribution limit.” Id.at 26. Noting the increased importance and expense of mass communications, the Court agreed that “the integrity of our system of representative government is undermined” if large contributions might secure a “political quid pro quo from current and potential office holders,” and even where there is the mere perception of such improper influence.Id. at 26-27.
On the other hand, the Court found that the restriction against independent expenditures “does not presently appear to pose dangers of real or apparent corruption comparable to those identified with large campaign contributions.” Id. at 46. It rejected the government’s argument that expenditures could be controlled or coordinated with the candidate, and have “virtually the same value to the candidate as a contribution,” because such “controlled or coordinated expenditures are treated as contributions” under the Federal Election Campaign Act, not expenditures.
In essence, Buckley made a sharp distinction between corporate contributions to a candidate, which remained barred, and support for other expenditures such as an issues advertisements uncoordinated with a candidate, which was permissible.
In 1977, the Court considered state limits on a corporation’s political speech First Amendment rights in the context of a referendum election inBellotti v. First Nat’l Bank of Boston, 435 U.S. 765 (1977). Massachusetts had enacted a criminal statute generally forbidding certain expenditures by corporations for the purpose of influencing the vote on referendum proposals.
The referendum at issue was a proposed constitutional amendment that would have permitted the legislature to impose a graduated income tax on individuals. The Bank planned to spend money to publicize its views on the referendum, but was told that it would be criminally prosecuted if it did so.
Because the speech that the corporations proposed to communicate – core political speech – “is at the heart of the First Amendment’s protection,” the Supreme Court concluded the law contravened the First Amendment:
[T]here is practically universal agreement that a major purpose of the First Amendment was to protect the free discussion of governmental affairs. If the speakers here were not corporations, no one would suggest that the State could silence their proposed speech. It is the type of speech indispensible [sic] to decision-making in a democracy, and this is no less true because the speech comes from a corporation rather than an individual.
The Court in Buckley had concluded: Protected speech does not lose First Amendment protection “simply because its source is a corporation.” Id. at 784.
Thirteen years later, the Court sounded a quite different theme when in 1990, it decided the constitutionality of a Michigan law that was modeled on the Federal Election Campaign Act in Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990). The Michigan law prohibited corporations, but not unions, from using their general treasury funds for independent expenditures.
The Court acknowledged that the only legitimate and compelling government interests identified by the Court for restricting campaign finances were “preventing corruption or the appearance of corruption.” Id.at 658. The Court found that this interest “supports the restriction of the influence of political war chests funneled through the corporate form.” Id.at 659. Singling out corporations, moreover, was appropriate in the Court’s view because of the special advantages such as limited liability or perpetual life that attend the corporate form. “These state-created advantages not only allow corporations to play a dominant role in the Nation’s economy, but also permit them to use resources amassed in the economic marketplace to obtain an unfair advantage in the political marketplace.” Id.
According to the Court, the danger that the Michigan statute sought to address was not the danger of “financial quid pro quo corruption” but was, instead, “a different type of corruption in the political arena: “[T]he corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas.” Id.at 660. The Court concluded that the state’s restriction as to corporate spending was “precisely targeted to eliminate the distortion caused by corporate spending.” Id.
Now our story gets more complicated. As a result of the Buckley Court’s construction of the Federal Election Campaign Act’s expenditure limitations to prohibit only funds that were used to “expressly advocate the election or defeat of a clearly identified candidate,” corporations and unions were free to spend as much money as they pleased on “issue advertising.” These ads did not “expressly advocate” for a particular vote for or against a particular candidate, but nonetheless unmistakably conveyed the same message in substance. See id. at 650-51. Because such expenditures were unregulated, corporations and unions poured hundreds of millions of dollars into such “issue ads” in each election cycle. Id.
Congress subsequently amended the Federal Election Campaign Act by enacting the Bipartisan Campaign Reform Act, popularly known as the McCain-Feingold law. 116 Stat. 81. In this law, Congress sought to regulate “issue advertising,” by introducing the concept of the “electioneering communication” which is defined to mean a broadcast message that “refers” to a clearly-identified candidate for federal office that is distributed by mass media within 30 days of a primary or 60 days of general election and “targeted to the relevant electorate.” Corporations and unions were prohibited from using their general treasury funds to engage in “electioneering communication,” except through the use of their segregated political funds, so called PAC funds.
The Court in McConnell v. Federal Election Commission, 540 U.S. 93 (2003) upheld this approach to electioneering communications. According to the Court, the ability of corporations and unions to form PACs affords them “a constitutionally sufficient opportunity to engage in express advocacy.” Id. Because corporations and unions can fund “electioneering communications” with PAC money, “it is ‘simply wrong’ to view the provision barring corporations and unions from using treasury funds for electioneering communications as a ‘complete ban’ on expression rather than a regulation.” Id. at 204.
This was part of the complex backdrop to Citizens United where the Supreme Court reconsidered the constitutionality of the McCain-Feingold Act’s ban on corporate and union “electioneering communications.”
In a 5-4 majority decision written by Justice Kennedy, the Court recognized that before McCain-Feingold, “federal law prohibited – and still does prohibit – corporations and unions from using general treasury funds to make direct contributions to candidates or independent expenditures that expressly advocate the election or defeat of a candidate, through any form of media, in connection with certain qualified federal elections.” Id.
Because Citizens United wanted to advertise “Hillary: The Movie” and make it available through video-on-demand during the black-out period, it filed a lawsuit seeking declaratory and injunctive relief against the McCain-Feingold Act prohibiting electioneering communications. Id. at 8.
The Supreme Court majority began its First Amendment analysis with the premise that the McCain-Feingold Act “is an outright ban [on corporate speech], backed by criminal sanctions.” Id. at 17. It catalogued a series of acts that would all be felonies under the Act:
The Court rejected the argument that the McCain-Feingold Act was not an outright ban because corporations and unions could form PACs to engage in such speech.
A PAC is a separate association from the corporation. So the PAC exemption . . . does not allow corporations to speak. Even if a PAC could somehow allow a corporation to speak – and it does not – the option to form PACs does not alleviate the First Amendment problems . . .. PACs are burdensome alternatives; they are expensive to administer and subject to extensive regulations.
According to the Court, in order to “bypass Buckley and Bellotti, theAustin Court identified a new governmental interest in limiting political speech: an anti-distortion interest,” specifically, “the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas.” Id. (quotingAustin). Post-Austin, the Court “is thus confronted with conflicting lines of precedent: a pre-Austin line that forbids restrictions on political speech based on the speaker’s corporate identity and a post-Austin line that permits them.”
The Court criticized the Austin anti-distortion rationale as inimical to the First Amendment because “[i]f the First Amendment has any force, it prohibits Congress from . . . jailing citizens, or associations of citizens, for simply engaging in political speech. If the anti-distortion rationale were to be accepted, however, it would permit Government to ban political speech simply because the speaker is an association that has taken on the corporate form.” Id.
In essence, the Supreme Court majority believed that Austin improperly interfered with the marketplace of ideas that the First Amendment was intended to foster:
By suppressing the speech of manifold corporations, both for-profit and nonprofit, the Government prevents their voices and viewpoints from reaching the public and advising voters on which persons or entities are hostile to their interests. Id. at 29.
Turning to the “prevention of corruption and its appearance” justification, the Court also found this insufficient to justify a government prohibition. Relying on Buckley, the Court noted that restrictions on direct contributions could be justified on this basis, but that restrictions on independent expenditures could not. Id. at 30. The Court rejected the notion that the fact that speakers may have influence over or access to an elected official means that these officials are corrupt.
Based on these consideration, the Court overruled Austin and “return[ed] to the principle established in Buckley and Bellotti that the Government may not suppress political speech on the basis of the speaker’s corporate identity. No sufficient governmental interest justifies limits on political speech of nonprofit or for-profit corporations.” Id. at 36. It also overruled McConnell to the extent that that opinion relied on Austin in upholding the McCain-Feingold Act’s restrictions on corporate “electioneering communications.”
As Justice Kennedy wrote:
Austin interferes with the “open marketplace” of ideas protected by the First Amendment. … It permits the Government to ban the political speech of millions of associations of citizens. See Statistics of Income 2 (5.8 million for-profit corporations filed 2006 income tax returns). Most of these are small corporations without large amounts of wealth. This fact belies the Government’s argument that the statute is justified on the ground that it prevents the “distorting effects of immense aggregations of wealth.” Austin, 494 U.S., at 660. It is not even aimed at amassed wealth.
At the same time, the Kennedy majority upheld the McCain-Feingold Act’s required disclaimer and disclosure requirements, specifically that the Act requires a disclosure to:
state that the communication “is not authorized by any candidate or candidate’s committee”; it must also display the name and address (or Web site address) of the person or group that funded the advertisement. [A]ny person who spends more than $10,000 on electioneering communications within a calendar year must file a disclosure statement with the FEC. … That statement must identify the person making the expenditure, the amount of the expenditure, the election to which the communication was directed, and the names of certain contributors. …
Disclaimer and disclosure requirements may burden the ability to speak, but they “impose no ceiling on campaign-related activities,” … and “do not prevent anyone from speaking.”
Justice Stevens in what may prove to be his last great opinion, authored a 90-page dissent, joined by Justices Ginsburg, Breyer and Sotamayor, which objected vigorously to the Court’s majority decision, arguing that it “threatens to undermine the integrity of elected institutions across the Nation.” Id. at 54.
The dissent attacked each of the premises of the majority’s opinion.
First, the dissent disagreed with the majority’s characterization of the McCain-Feingold Act provision as a “categorical ban” on corporate speech. The dissent observed that the Act permits corporations to form PACs, and this was a “constitutionally sufficient opportunity to engage in express advocacy,” even though it concededly imposed “some administrative burden” on speech. Id. at 63. Moreover, the law permitted many other avenues for corporations to speak. It had, for instance, no application to genuine issue advertising, or to candidate-specific advocacy through print media, the Internet or telephone. Media corporations were exempt with respect to their news stories, commentaries and editorials. Corporations could spend unlimited amounts communicating with their own shareholders and executives, to distribute voting guides, to underwrite voter registration, and publicly endorse candidates through a press release and press conference. Id. The limited category of speech suppressed – broadcast, cable and satellite communications, made within 30 days of a federal primary or 60 days of a general election, susceptible to no reasonable interpretation other than as an appeal to vote for or against a specific candidate – “is not trivial, but the notion that corporate political speech has been suppressed altogether . . . is nonsense.” Id. at 64
Second, the dissent disagreed with the assertion that the Government cannot restrict political speech based on the speaker’s identity. Id. at 65. According to the dissent, the majority misread Bellotti on this point, whose holding was “far narrower than the Court implies.” Id. Speech can be regulated “differentially on account of the speaker’s identity, when identity is understood in categorical or institutional terms[,]” including Supreme Court decisions restricting speech by students, prisoners, members of the armed forces, and government employees. Id. Stevens elaborated:
We have, for example, allowed state-run broadcasters to exclude independent candidates from televised debates. … We have upheld statutes that prohibit the distribution or display of campaign materials near a polling place. … Although we have not reviewed them directly, we have never cast doubt on laws that place special restrictions on campaign spending by foreign nationals. And we have consistently approved laws that bar Government employees, but not others, from contributing to or participating in political activities.
Third, the dissent took issue with the majority’s understanding of the history and development of First Amendment law, in particular, the majority’s assertion that Austin and McConnell were aberrations.
In Stevens’ view, there was no conflict between Austin or McConnell andBellotti:
Austin and McConnell … sit perfectly well with Bellotti. Indeed, all six Members of the Austin majority had been on the Court at the time of Bellotti, and none so much as hinted in Austin that they saw any tension between the decisions. The difference between the cases is not that Austinand McConnell rejected First Amendment protection for corporations whereas Bellotti accepted it. The difference is that the statute at issue inBellotti smacked of viewpoint discrimination, targeted one class of corporations, and provided no PAC option; and the State has a greater interest in regulating independent corporate expenditures on candidate elections than on referenda, because in a functioning democracy the public must have faith that its representatives owe their positions to the people, not to the corporations with the deepest pockets.
The principal criticism raised by Stevens’ dissent was the majority’s unwillingness to admit that there were compelling distinctions between human beings and corporations that were significant for purposes of the First Amendment. Id. at 88-93. In the view of the dissent, because of their artificial, immortal nature, corporations pose distinctive threats to democracy. They have a structural advantage that permits them to dominate political speech, which will result in the quieter voices of individuals and smaller associations being ultimately discouraged from even attempting to participate. Id. at 90.
In addition to this immediate drowning out of noncorporate voices, there may be deleterious effects that follow soon thereafter. Corporate “domination” of electioneering … can generate the impression that corporations dominate our democracy. When citizens turn on their televisions and radios before an election and hear only corporate electioneering, they may lose faith in their capacity, as citizens, to influence public policy. A Government captured by corporate interests, they may come to believe, will be neither responsive to their needs nor willing to give their views a fair hearing. The predictable result is cynicism and disenchantment: an increased perception that large spenders “call the tune” and a reduced “willingness of voters to take part in democratic governance.”
In my view, there are other conclusions worth drawing from Citizens United:
First, the identity of the corporation as a “person” under the Constitution is not the real issue here. Corporations have been considered “persons” or “citizens” in various provisions of the Constitution long before this case. Personhood is just the beginning of the analysis. The real issue is what legal rights flow from the status of being a person. To say that a corporation is a citizen and can be sued in federal court presumably should not trouble us. If that holding had not been reached, corporations might be immune from certain forms of litigation. In effect, this holding far from creating corporate legal rights, balances a corporation’s right to do business with the same exposure to litigation that natural persons experience.
Similarly, to say that a corporation is a person under the Fourteenth Amendment and is protected by the Equal Protection Clause, may offend the legal stylist because the same result can be achieved under the Interstate Commerce Clause, but again this result is not deeply troublesome. One way or another, in a nation that operates under the interstate commerce clause, corporations created outside of a state generally will be treated equally to those corporations created inside a state.
In the realm of free speech, however, the status of a corporation as a person does take on significant consequences. The Supreme Court often in the past had been nuanced in giving a limited free speech protection to advertise under the commercial free speech doctrine. This is the equivalent to characterizing the corporation and other business entities as second-class citizens, but does effectively resolve the legal issue of how to protect and inform consumers under the First Amendment which requires “personhood” to create a legal right at all.
Second, if the core issue posed by Citizens United is not corporate status as a Constitutional person, then it is the corporation’s rights to participate in the electoral process. If a corporation is the equivalent to a natural person, these rights are very broad. Here I find the majority opinion particularly unpersuasive. If the key to its argument is to protect the right of listeners to hear all views regardless of the corporate source of information, then by a similar logic a corporation under the First Amendment should be allowed to use its treasury to directly contribute to political candidates. The Supreme Court’s majority, however, took pains not to hold or even suggest that it would support direct political contributions to candidates. Why not? Presumably because the majority recognizes some validity to the fear of corruption or undue corporate or labor union influence that underlies the Tillman Act and subsequent federal election laws.
If these remain appropriate justifications for a prohibition of direct corporate contributions to candidates, it is not clear why they are less persuasive for indirect corporate contributions through issue ads. The purpose of both is virtually the same: to influence the outcome of an election.
The majority did not question that corporations are often the largest and wealthiest actors in our economy. The 2010 Fortune 500 List, for example, includes firms with revenues ranging from $4.2 to $408 billion in that year. These corporate revenues dwarf the resources available to virtually every natural person in our nation.
To suggest that a corporation is wholly separate from a PAC fund it creates bespeaks a cloying naiveté. Then, why, one wonders, would a corporation bother to create a PAC at all? No one who has ever been involved in a PAC doubts that a particular institution such as a corporation indirectly stands behind the PAC. The PAC, in essence, is a triumph of form over substance. A legal analysis based on a formal separateness of a corporation from its PAC is a legal fiction. It also means that the significance of Citizens Unitedis a good deal less than feared. Through PACs, corporations already can achieve indirectly some of what it is feared they will seek to do directly after this case.
I do not mean, however, to suggest that Citizens United has no significance. I particularly dispute the majority suggestion that preventing corporations from contributing to movie ads or documentary movies will meaningfully limit political discourse in this country. There are millions of business corporations in this country that would be limited for 30 or 60 days of blackout periods from fully expressing free speech. But each of these corporations is owned by millions of individual persons, none of whom is limited by this decision in any way.
Our democracy is based on the assumption that the near unlimited opportunity of human beings to speak, form parties, and vote will create a system of robust, democratic elections. Surely the loss of corporate voices during 30 to 60 day blackout periods from specified electioneering communications will not chill democracy in a nation of millions of voters.
Thus, while I believe the majority decision was wrong, I am skeptical that the outcome of Citizens United will be as far reaching as is widely feared. The rationale for the case was established decades ago. This case did not create the doctrine that the First Amendment protects speech, nor speakers.
The holding itself is narrow and solely deals with specific forms of corporate expenditures 30 days before a federal primary and 60 days before a federal election.
Moreover, the majority decision upheld the disclaimer and disclosure provisions of the Act. Disclosure requirements sometimes prompt a “shrinking quality” on the part of those who must disclose. When a corporation, for example, must disclose its identity in a public policy debate, it may conclude because of a conflict of interest on an issue, it is wiser not to contribute at all. Congress has the option to add other regulatory requirements.
At the end of the day, what is most concerning about Citizens United is not its decision or rationale, but the possibility that in subsequent decisions, the Supreme Court will go considerably further and prohibit Congress from banning direct corporate contributions to candidates. That would be a far worse result. It is not inevitable.