American politics is in trouble. A tsunami of unaccountable, untraceable political money is overwhelming the Republican race for the presidential nomination and threatens to do the same to the fall election. For many people, especially progressives, the culprit is easy to name: the Supreme Court’s 2010 decision inCitizens United v. Federal Election Commission, which swept away any limits on election-advocacy ads by corporations, unions and “independent” political-action committees (PACs) and issue groups.
Many progressives believe that Citizens United “made corporations people” and that a constitutional amendment restricting “corporate personhood” will cure this political ill. Citizens United is a bad decision. This obvious fact may even be dawning on the Court’s conservative majority, which is taking a surprisingly leisurely look at American Tradition Partnership, Inc. v. Bullock, in which the Montana Supreme Court directly challenged Citizens United, in essence telling the justices that they didn’t understand the first thing about politics. Justices Ruth Bader Ginsburg and Stephen Breyer, dissenters in Citizens United, have publicly stated that American Tradition may offer an opening to limit or even overturn the malign precedent.
But the problem didn’t start with Citizens United and can’t be fixed by a corporate-personhood amendment. The threat to American self-government runs far deeper. It started nearly 40 years ago, when the Court first became involved in campaign-finance cases. Four decades of decisions have allowed the rich and powerful to transform free speech—our most important tool of bottom-up self-government—into a means of top-down social control.
To understand what’s wrong with free-speech doctrine in the 21st century, consider a question put from the bench by Chief Justice John Roberts during oral argument in a case calledArizona Free Enterprise Club’s Freedom Club PAC v. Bennett.
In 1998, the voters of Arizona created a voluntary public-financing system, in which a candidate who agreed not to solicit or spend private funds would receive state funding. Public financing is a great idea; it frees candidates from the need to truckle to wealthy donors. Under current constitutional doctrine, though, it can’t be made mandatory.
Candidates who refuse to take part in the system can often raise much more (from their own funds or from contributions) than the amount allotted to their challengers by the state. To address this concern, the act provided that if a privately financed candidate spent more than a publicly financed candidate’s allotted funding, the publicly financed candidate would receive additional money to allow a competitive election. The law didn’t match the private campaign dollar for dollar, but it did give the publicly financed candidate a second infusion of cash.
Right-wing political groups challenged the additional-funding provision. They argued that it infringed the free-speech rights of privately financed candidates, because those candidates might hesitate to spend campaign funds if doing so would trigger additional funding for their opponents.
When the case came before the Court, Roberts asked the state of Arizona’s lawyer, “I checked the Citizens’ Clean Elections Commission Web site this morning, and it says that this act was passed to, quote, ‘level the playing field’ when it comes to running for office. Why isn’t that clear evidence that it’s unconstitutional?”
Appellate judges are not supposed to go Googling around on argument day in search of new evidence to spring on counsel during oral argument. They are supposed to decide cases only on the record before the Court. Early in 2012, when a government lawyer defending environmental regulations seemed to be straying from the printed record of evidence, Roberts dressed him down. “If they weren’t in the record, I don’t want to hear about them. You appreciate that rule, that we don’t consider things that aren’t in the record,” he scolded. That rule apparently doesn’t apply to the chief justice.
Roberts’ question showed that he had detected a major First Amendment heresy. Any hint of civic equality, any reference to a “level playing field,” was to him proof that Arizona’s election scheme was invalid. Indeed, the Court invalidated the Arizona law three months later. The Republican right, supported by the conservative majority on the Supreme Court, has decided that freedom of speech is incompatible with equal citizenship. That misunderstanding has done severe damage to our democracy and now threatens to destroy it.
That misunderstanding also explains Citizens United, in which the Court held that corporations must be allowed to fund independent advertising advocating the election or defeat of political candidates. The ban on independent expenditures (which applied only during a time period just before elections) was designed to avoid corruption or the appearance of corruption. Lawmakers reasoned that allowing corporations to jump into a campaign might give them unfair sway over successful office seekers; even if it did not, it would create the impression that wealthy people and organizations can buy influence with the candidates they support.
The Court, however, laughed off this claim. “Independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption,” Justice Anthony Kennedy wrote for the majority. “The appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy.” Exactly why this is true the Court did not bother to explain.
What Citizens United means is that corporations and wealthy donors, with their enormous financial resources, can flood the airwaves with ads from deceptively titled issue groups with names like “Americans for Prosperity” and “American Future Fund.” They did this in the 2010 midterms and have now transformed the Republican primaries of 2012, in which secretive “super-PACs,” allied with the different rivals for the nomination, have poured millions into small-state contests to fund scabrous attack ads.
In February 2012, the Obama campaign bowed to the inevitable and began urging wealthy donors to support its own super-PAC, Priorities USA Action. As this suggests, the independence of these groups is a joke; they have become arms of the campaigns, governed by no limits on contributions or contributors. The money race is bound to assume a new and monstrous level as the 2012 campaign cycle moves forward.
Conservative activists are ready with cases designed to push the Citizens United principle further. In United States v. Danielczyk, District Judge James C. Cacheris dismissed criminal charges against executives accused of diverting corporate funds to the Hillary Clinton presidential campaign. Even the current federal ban on direct contributions from corporate treasuries—unchanged by Citizens United—violates the First Amendment, he said. “Taken seriously, Citizens United requires that corporations and individuals be afforded equal rights to political speech, unqualified,” he wrote. “Thus, following Citizens United, individuals and corporations must have equal rights to engage in both independent expenditures and direct contributions. They must have the same rights to both the ‘apple’ and the ‘orange.’”
Judge Cacheris’ opinion contradicted what the Supreme Court had said in Citizens United, but it’s likely that the Court will seriously consider his argument when the issue comes before it. Meanwhile, right-wing lawyers are conducting a guerrilla campaign in the lower courts against requirements that donors disclose their identities. This too, the right argues, violates “freedom of speech.” Justices Clarence Thomas and Samuel Alito have hinted that they agree with this position.
The right embraced Citizens United as the most important free-speech victory since the repeal of the Sedition Act. “Any proponent of free speech should applaud this decision,” said Senate Minority Leader Mitch McConnell. “Citizens United is and will be a First Amendment triumph of enduring significance.” Even Newt Gingrich, who often speaks of federal courts as an enemy to be defied or even dissolved, praised the Supreme Court for “its principled defense of our First Amendment rights to freedom of speech, for example in the recent case of Citizens United.”
Progressives and moderates have reacted differently. In his 2010 State of the Union address, President Obama scolded the justices seated in front of him, saying, “With all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests—including foreign corporations—to spend without limit in our elections.”
Much progressive outrage focuses on the inclusion of corporations in the First Amendment. The idea has grown up that the case created corporate personhood. This is because the First Amendment’s guarantee of free speech applies to the states by way of the Fourteenth Amendment, which forbids the states to “deprive any person of life, liberty, or property, without due process of law.”
Jeffrey D. Clements, general counsel and co-founder of Free Speech for People, recently published an anti–Citizens United book titled Corporations Are Not People: Why They Have More Rights Than You Do and What You Can Do About It. Demonstrators outside the Supreme Court on the second anniversary of Citizens United performed a skit in which actors wore large boxes with corporate logos. While a chorus belted out the Sesame Street song about “a person in your neighborhood,” the boxes tried to blend in with a crowd of ordinary workers and consumers. “I’ll believe corporations are people when Texas executes one” is the legend on one popular anti–Citizens United social-media post.
But the attack on “corporate personhood” reflects both a misconception of Citizens United and the problem with current First Amendment law. The problem is not that corporations are “persons” under the law. Corporations have always been “persons”—that is and always has been, in fact, the definition of a corporation, a “fictive person” able to own property and enter into legal agreements. Also, the problem is not the idea that corporate “persons” have free-speech rights. Of course they do. The idea that corporations have some of the free-speech rights that people have is essential to important Court decisions like New York Times Co. v. Sullivan (1964) and New York Times Co. v. United States (1971), which removed the threat of government censorship from American media. Nor is the problem the idea that “money is speech” -- the First Amendment would be toothless if government could prohibit anyone from paying to publish thoughts or being paid to publish them.
The profound problem with our current law is the idea that free speech has neither nuanced variations nor underlying values. The Court in Citizens United claimed that corporations either must have no free-speech rights or must have precisely the same free-speech rights as natural persons do. There is a middle position. Retired Justice John Paul Stevens explained it to TV host Stephen Colbert in January. “For some purposes, corporations are persons,” he said. “As with natural persons as well as corporate persons, some have different rights than others do. The same rights don’t apply to everyone in every possible situation.”