Citizens United, Shareholder Rights, and Free Speech: Restoring the Primacy of Politics to the First Amendment, Part I

The following is an opinion piece on the decision in Citizens United v. Federal Election Commission by Bradley A. Smith, Josiah H. Blackmore II/Shirley M. Nault Designated Professor of Law at Capital University Law School and chairman of the Center for Competitive Politics.  Professor Smith is a former chairman of the Federal Election Commission.  The post is divided into halves; the second part will follow shortly.

Last month’s Supreme Court decision in Citizens United v. Federal Election Commission is an important step to restoring political speech to the primacy it deserves under the First Amendment.

For years now, both outside observers such as I and members of the Court, most notably Justices Scalia and Thomas, have pointed out that the Court has been giving greater protection to such non-political speech as internet pornography, nude dancing, and the transmission of stolen communications than it has to core political speech.  These charges, whether made in judicial opinions, such as Justice Thomas’s dissent in Nixon v. Shrink Missouri Government PAC, or in public commentary have gone unanswered.  It is, of course, relatively easier to defend the First Amendment when the consequences of doing so seem unlikely to upset one’s own life or to have a broad impact (see, e.g., East Hartford Education Association v. Board of Education, upholding the right of a teacher not to wear a tie in the classroom), than it is when upholding the First Amendment may have major consequences for one’s own cherished political beliefs.  And let us make no mistake – there is a reason that the political left has been howling about Citizens United, and it is the belief that corporate political speech will benefit causes with which they disagree (see quotes from Democratic Senators and President Obama in recent newspaper stories here, here, and here).

In fact, the Supreme Court had to rule in favor of Citizens United, and what is remarkable is not that it did, but that four Justices dissented.  Remember, the government’s position in the case was that under the Constitution, it had the power to ban the distribution of books through Kindle; to prohibit political movies from being distributed by video on demand technology; to prevent Simon & Schuster from publishing, or Barnes & Noble from selling, a 500-page book with even one sentence of candidate advocacy; or to prevent a union from hiring a writer to author a book about the benefits to working Americans of the Obama agenda.  For all the outrage about this opinion, I have yet to hear anybody seriously defend that result.  The fact that not one of the dissenters could find a middle ground on which to concur in the judgment suggests that the majority was correct – this case was all or nothing.  Far from being activist, the majority reached the only logical conclusion.  The dissenters were the activists here, prepared to enforce an interpretation of the First Amendment wholly foreign to most Americans.

In his critique of the decision here at SCOTUSblog, Professor Tribe avoids the hysteria that has taken over much of the left.  While there is no doubt that this decision is important and will result in more public political speech (which I believe is a good thing), Professor Tribe notes that fears of an “overwhelming flood” of corporate political spending are overblown.  Professor Tribe correctly points out that before Citizens United, twenty-six states already allowed unlimited corporate spending in elections (and two more allowed limited corporate spending), and these states, representing over sixty percent of the nation’s population, were not overwhelmed by corporate or union spending in state elections.  Moreover, they include the top five rated states in Governing Magazine’s rating of the best governed states (Utah, Virginia, Washington, Delaware and Georgia).  Furthermore, prior to the McCain-Feingold Act of 2002, corporations could fund “issue ads,” hard-hitting ads that discussed candidates and issues but stopped short of asking citizens to vote in any particular way.  In defending McCain-Feingold in the courts, reformers had argued vociferously that these “issue ads” were no different in effect from the “express advocacy” ads the Citizens United Court ruled corporations have a right to make, and the Court had expressly adopted that view in McConnell v. FEC. If that is true, then the change in the law is merely, as a practical matter, back to the status quo of the 1980s and 1990s.  While many people do not like that change, it is difficult to argue that elections improved, or special interest influence declined, during the seven year reign of McCain-Feingold.

Nevertheless, Professor Tribe joins the chorus of those who seem to assume that Congress must “do something” about Citizens United. And here, the arguments have taken a curious twist.

The new rallying cry seems to be a combination of simultaneously attacking shareholder rights while claiming to defend them.  The attack on shareholders’ rights comes in the form of claims, voiced by Justice Stevens in his interminably long dissent, by Justice Sotomayor at oral argument, and by numerous liberal commentators, that corporations really have no rights, since they are “creatures of the state.”  In dissent, Stevens pulled a quote from the great Chief Justice John Marshall, “A corporation is 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” (Dartmouth College v. Woodward).  Never mind that Justice Marshall found that the corporation did have constitutional rights – Stevens uses Marshall to argue that it does not.

Here again, Stevens reveals the radical, activist position of the dissenters.  For well over one hundred years, it has been recognized that corporations possess constitutional rights as “persons.”  Few of us, for example, would endorse the proposition that a corporation could have its property seized (i.e., the property of the natural persons who are its shareholders) without due process.   While corporations do not have the ability to exercise, as corporations, all Constitutional rights, they have long been recognized as able to assert constitutional rights where doing so is necessary to preserve the rights of the corporate members or shareholders.  Thus, where a corporation asserts a right to speak, it is really the members of the corporation asserting a right to associate and to speak as a group.  That is why corporations possess First Amendment speech rights (as opposed to the Fifth Amendment right against self-incrimination, or the right to vote, which are only exercised on an individual basis, not through association in the group).

If Stevens and the others who joined his opinion are serious in thinking that corporations have no rights other than those granted (at whim, apparently) by the state, they are perhaps the most radical group of justices we have ever seen, prepared to overturn hundreds of precedents from the nation’s earliest days to the present.