The right eloquence needs no bell to call the people together and no constable to keep them. ~ Emerson

Thursday, February 4, 2010

Corporations Are People Too

The Court’s Ruling in Citizens United Reverses Not Only Austin but also the Conservative Doctine of Strict Construction

Corporations are people too . . . or, rather, they are an “assemblage” of people and thus entitled to freedom of political speech under the First Amendment. This was the recent conclusion of the Supreme Court in the landmark case Citizens United v. Federal Election Commission.

During the last Presidential primary election season, Citizens United, a conservative political group, produced a ninety minute movie extremely critical of candidate Hilary Clinton. Citizens United wanted to air ads for the anti-Clinton movie and distribute it through cable systems' on-demand video services. Federal courts shot down that idea, saying the movie was indistinguishable from a campaign ad and should be regulated like one.

It is arguable that over the past century the general trend among all three branches of government has been increased regulation to moderate undue influence by corporations. In the case of the Legislative Branch, the capstone of their efforts relevant to political speech was passage of the McCain-Feingold Act, which prohibited corporations and unions from broadcasting “electioneering communications” in the thirty days before a Presidential primary and in the sixty days before a general election.

For its part, the Judicial Branch has been more inclined to balance corporate free speech rights against protecting society from their influence during elections. In the 1976 case of Buckley v. Valeo, the Supreme Court upheld a federal law which set limits on campaign contributions but also maintained that spending money to influence elections is a form of protected free speech. Two years later in First National Bank of Boston v. Bellotti, by a narrow five to four margin, the Court ruled that corporations had a First Amendment right to make contributions in order to attempt to influence political issues.

In 1990 the Court ruled in Austin v. Michigan Chamber of Commerce, by a six to three vote, that while corporations and unions could use money to support/oppose general issues or specific legislation, they could be prohibited from using treasury money to support/oppose specific candidates in elections.

The majority opinion in Austin, authored by Justice Thurgood Marshall, introduced a new rationale for limiting corporate political speech in the form of an “anti-distortion interest.” It sought to prevent “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.”

One can argue that Austin was a logical evolution from Buckley and Bellotti, recognizing the powerful combination of corporate mergers and globalization with forms of mass media never before present in American political discourse prior to the (late) Twentieth Century. Other saw Austin as directly contradicting the free speech guarantees of the earlier cases.

One such jurist was Justice Anthony Kennedy. He was among the dissenting minority in Austin and author of the five to four majority opinion that reversed it in Citizens United. In that opinion, he wrote, “Speech restrictions based on the identity of the speaker are all too often simply a means to control content . . . We find no basis for the proposition that, in the context of political speech, the Government may impose restrictions on certain disfavored speakers.”

The chief controversy over this decision has understandably centered on its correctness. President Obama, representing the liberal opposition, went so far as to rebuke the Court during his State of the Union address, 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.”

However, for me the most significant and interesting aspect of Citizens United is that it crushingly ends the long-standing Republican contention that judicial activism is solely a liberal peculiarity. The logic in its majority opinion is every bit as activist as anything you will find in Roe v. Wade or any other landmark progressive Court decisions.

Rumors surfaced back in 2008 that Chief Justice Roberts was particularly anxious to add Citizens United to the Court’s docket. After first hearing the case in March 2009, the Court asked the parties to argue it again in September, with particular emphasis on corporate versus individual campaign spending.

However, the real tour de force is the opinion itself. The main thesis of Citizens United’s argument was that their anti-Hillary Clinton movie did not represent an “electioneering communication.” Justice Kennedy begins by tearing their reasoning apart, point by point, with surgical precision. With the plaintiff’s case lying in pieces on the ground around him, Kennedy suddenly veers to reconsider and reject Austin – a case never even mentioned in Citizen United’s original brief – in order to find in their favor.

Early in his opinion, Kennedy concedes, “The Government may regulate corporate political speech through disclaimer and disclosure requirements.” Yet when considering why Citizens United did not simply use a PAC to promote its movie, which would have been completely legal, Kennedy concludes PACs’ disclosure requirements make them unacceptably “burdensome alternatives.”

As Justice Stevens pointed out in his length dissent, not only was the Court inaccurate in its decision “that corporations must be treated identically to natural persons in the political sphere” but also, “Even more misguided is the notion that the Court must rewrite the law relating to campaign expenditures by for-profit corporations and unions to decide this case.”

Both Chief Justice Roberts and Justice Scalia wrote concurring opinions but it would be more accurate to characterize them as “dissenting dissenting opinions,” since they each spend far more time addressing Stevens’s charges of judicial activism than they do with the points of law cited by Kennedy.

Stevens noted the tradition of the Court to avoid broad decisions when more narrow solutions are suitable to a specific case. Roberts counters, “This approach is based on a false premise – that our concurring practice of avoiding unnecessary (and unnecessarily broad) Constitutional holdings somehow trumps our obligation faithfully to interpret the law.”

Scalia, with characteristic grumpiness, rejects Stevens’s notion that the majority decision is not supported by an original understanding of the First Amendment, contending it does so “in splendid isolation from the text of the First Amendment” and never showing why “the freedom of speech that was the right of Englishmen did not include the freedom to speak in association with other individuals, including association in the corporate form.” When the Court wants to break with twenty years of precedence, Scalia seems to be saying, the burden of proof lies with . . . precedence.

I cannot deny that I dislike this decision for all of the many reasons cited against it. I am particularly bothered by the anonymity of corporate and union political speech. When Exxon-Mobil pays for a commercial endorsing one candidate or the AFL-CIO pays for a commercial opposing another candidate, what does that really mean? Who was the decision-maker for the expenditure of those funds? Who is held responsible when it is learned that blanketing the airways with ads left a scoundrel into office or forced out a decent public servant on trumped-up charges?

Still, Kennedy and the conservative Justices whose views prevailed in this case may be correct. The First Amendment is not written with many loopholes for restricting speech. The Supreme Court, after all, is meant to be an ongoing battle between opposing ideologies – balancing individuals and groups against society as a whole and tempering fundamental rights with necessary protections.

Regardless, Citizens United sweeps away the Republican conceit that only one ideology represents an impartial interpretation of the law, with the other impossible to practice without requiring disregard of the Constitution and precedence. Judicial activism is alive and well on both ends of the Court’s bench.

Justice Scalia likes to pontificate on a strict construction of the Founders’ original intent. During his confirmation, Chief Justice Roberts contended a judge should be more like an umpire than a player. With their concurring opinions in Citizens United, both demonstrated they are more than willing to dispense with precedence in those areas of the law where they believe the Court has been genuinely mistaken in the past.

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