January 11, 2012
In January 2010, the U.S. Supreme Court issued one of its most controversial decisions in decades, Citizens United v. FEC.1 The response among politicians supporting restrictions on campaign finances was immediate and fierce. President Obama said he could not “think of anything more devastating to the public interest” and criticized it during the State of the Union address with members of the Court present.2 Senator Al Franken called it “an incredible act of judicial activism,”3 while Rep. Chris Van Hollen called it “a very, very sad day for American democracy,” and a “radical, radical decision.”4
Politicians were not the only ones to denounce Citizens United. One law professor compared it to Plessy v. Ferguson5 and Dred Scott.6 A Huffington Post writer compared the five Justices in the majority to concentration camp prisoners who cooperated with the Nazis and called the beneficiaries of the decision “vampires” who treat humans “as sources of profit, with zero consideration for their humanity.”7
The decision remains a sore spot for many. A cable-TV-talk-show-host for the cable channel MSNBC, Dylan Ratigan, is attempting to lead an effort to amend the U.S. Constitution to reverse Citizens United,8 while a recent “Occupy DC” event concentrated on undoing the decision.9
Many of the assumptions underlying this opposition are simply incorrect, however. If the arguments employed against Citizens United are any indication, the opponents’ positions are based on an erroneous understanding of the American constitutional system and a fundamental misreading of the First Amendment itself. Indeed, the most common critiques of Citizens United are based on beliefs about what the decision did—recognizing corporate personhood and ignoring that the Founders never meant to “give” free speech rights to corporations—that are either entirely false or, at the least, reflect a serious misunderstanding of American government. Read correctly, with an accurate understanding of history and Supreme Court precedent, Citizens United is a decision consistent with both the words and intent of the First Amendment.
What Did Citizens United Actually Say?
Citizens United concerned a provision in the U.S. Code, Section 441b of Title 2, that made it a crime for corporations and unions to use general treasury money to make “independent expenditures” (that is, spending that is not coordinated with candidates) that expressly advocated the election or defeat of a federal candidate.10 Prior to Citizens United, corporations and unions could only participate in the political process by creating separate political action committees (PACs). PACs operate under complex and expensive administrative requirements, however, and these associations could not use general treasury funds for political purposes, so this was an “alternative” of which very few corporations availed themselves.11
Citizens United is a nonprofit corporation that wished to use its general treasury funds to distribute a film about Hillary Clinton—then a candidate for the Democratic Party’s nomination for President in 2008—via video-on-demand. Citizens United sued the Federal Election Commission to enjoin Section 441b’s application to their distribution of the film. Citizens United lost at the trial court and then sought review at the U.S. Supreme Court, which took up the case in 2009.
In an unusual move, the U.S. Supreme Court held oral argument twice in the case. In the first argument, the U.S. Solicitor General’s office admitted that “a corporation could be barred from using its general treasury fund to publish [a] book . . . .”12 In other words, the position of the government was that, if a group of citizens pooled their money in a corporate form, the government could fine or imprison them if they published a book, or made a film, about politics. During the second oral argument, then-Solicitor General Elena Kagan attempted to back away from this statement, saying that the FEC had never applied the provision to a book, to which Chief Justice Roberts responded, “But . . . we don’t put our First Amendment rights in the hands of FEC bureaucrats . . . .”13
In January 2010, a five-Justice majority struck down Section 441b. The Court stated unequivocally that the First Amendment restricts the ability of the government to abridge the freedom of speech of corporations. The Court found that Section 441b was an outright ban on speech and that the PAC alternative was not a real alternative for corporations because PACs are separate associations and expensive and difficult to establish and administer.
The Court also noted that the government’s reasoning would also allow it to ban media publications, but that it had so far exempted media corporations from the law’s broad reach. The Court rejected the government’s proffered justifications for the law. It overturned two relatively-recent decisions, Austin v. Michigan Chamber of Commerce14 and portions of McConnell v. FEC,15 which held that the government may ban the independent expenditures of corporate and union entities.
Justice Stevens, joined by three other Justices, filed a lengthy dissent, arguing that Congress could constitutionally make it a felony for corporations and unions to pay for political advertisements using money from their general treasury.
What Citizens United Did Not Say
Many critics of the decision argue that Citizens United hinge on the assumption that the decision granted corporations the same constitutional rights as individuals and that this grant of rights was incorrect because the First Amendment only applies to individuals. For instance, in one of its criticisms of Citizens United, The New York Times (ironically, a for-profit corporation that routinely uses its general treasury funds to expressly advocate for the election or defeat of federal candidates) said the following: “Most wrongheaded of all is its insistence that corporations are just like people and entitled to the same First Amendment rights.”16 Similarly, Rep. Van Hollen stated that Citizens United “is a decision that equates, for the purposes of expending monies in elections, says [sic] that corporations equal individuals. I think it is an un-American decision . . . .”17 Justice Stevens also accepted this argument, arguing that the “speech” referred to in the First Amendment only applies to “oral communications by individuals,” and that because corporations are “artificial entities,” they “do not have the technical capacity to speak.”18
These criticisms misunderstand the American constitutional order and the purpose of the First Amendment itself. The critics are correct, of course, that the First Amendment does not say anything about corporations having free speech rights. This is because it does not say anything about which individuals and groups have free speech rights. The First Amendment provides: “Congress shall make no law . . . abridging the freedom of speech.” It does not say, “Only persons have the right to free speech.” It does not say, “Corporations do not have free speech rights,” nor does it say, “Congress shall make no law abridging the freedom of speech of individuals.” It does not say, “Congress shall make no law abridging freedom of speech, except for two or more people.” It does not say, “Congress shall make no law abridging freedom of speech, except when the speaker is capable of amassing 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.”19
The critics of Citizens United thus forget an important fact about the First Amendment: it is not a grant of rights. Instead, the First Amendment is a restriction on government power.20 The First Amendment restricts the ability of government to restrict the rights listed in the amendment—it certainly does not create a limitation on those rights so that they apply only to individuals acting by themselves. It does not lay out who does and does not have the right of free speech because it assumes every American, acting collectively or individually, does.
Instead, the First Amendment defines what legislation Congress can pass that affects this right, which is none. The Founders believed the rights guaranteed by the Bill of Rights are inherent in the American people and that these rights prevail whether they act independently or in concert with one another. The Bill of Rights is an explicit recognition that Congress cannot interfere with these inherent rights. It was not a positive grant of privileges, but a restriction on government.
It is difficult to believe that the critics of Citizens United really believe that only individuals may exercise constitutional rights. Taken to its logical conclusion, the belief that “only individuals have constitutional rights” would have serious consequences for American liberty and would reduce the U.S. to little more than a legislative dictatorship. If only individuals are protected by the Bill of Rights, can the government seize Apple’s intellectual property without paying for it, regardless of the Fifth Amendment? Can the government quarter troops at the AFL-CIO’s headquarters, despite the Third Amendment? Can it search the ACLU’s offices without a warrant because the Fourth Amendment does not apply? Why would any corporation continue to operate in the United States if the fundamental protections that have made America a free and prosperous nation can be ignored by the government? Could the government destroy organized labor by means commonly viewed as forbidden by the Bill of Rights?
In his majority opinion, Justice Kennedy also recognized the implications of a holding that Congress could ban speech by groups of individuals acting in concert: it would allow the government to ban speech by newspapers, magazines, television news organizations, and other members of the press.21 If the government may ban speech because it is produced by corporations, unduly influential, and drowns out other speakers, why should media corporations—which are sometimes owned by some of the largest multi-national corporations in the world—be immune? Dylan Ratigan, who works for a cable network owned by General Electric, seems to assume that his speech and that of his employer would be immune from a constitutional amendment banning corporate political speech, but it is not clear why this would be so.
Corporations and unions are not individuals, but they are comprised of individuals that have banded together for common purposes. Marriages, partnerships, neighborhood organizations, and rock groups are all also not individuals, but are rather associations of individuals that have decided that acting cooperatively is more effective than acting alone. To hold that the First Amendment rights (or any other constitutional rights) dissipate the minute one person begins to act in concert with another would neuter the Bill of Rights as an effective check on unrestrained government power. As Chief Justice Roberts put it in his concurrence in Citizens United, “The First Amendment protects more than just the individual on a soapbox and the lonely pamphleteer.”22
Many critics of Citizens United do not realize that this decision was the third time the Supreme Court considered the constitutionality of this law. The first two times the Supreme Court considered the ban, however, it went out of its way to avoid reaching the issue of its constitutionality. Justice Douglas, joined by Chief Justice Warren and Justice Black, filed a dissent that argued that not only should the Court hear the case, it should strike down the ban as an obvious violation of the First Amendment:
Some may think that one group or another should not express its views because it is too powerful, because it advocates unpopular ideas, or because it has a record of lawless action. But these are not justifications for withholding First Amendment rights from any group—labor or corporate. First Amendment rights are part of the heritage of all persons and groups in this country. They are not to be dispensed with or withheld because we or Congress thinks the person or group is unworthy.
Justice Douglas concluded by calling the ban “a broadside assault on the freedom of political expression guaranteed by the First Amendment.”23
The critics of Citizens United too often ignore what the case actually said and disregard the meaning and intent of the First Amendment. Justice Kennedy and Justice Douglas recognized that the right of free speech is not a privilege dispensed by the Court or the government, but an inherent right that the First Amendment protects from government action. When viewed correctly, Citizens United was perfectly consistent with the wording, spirit, and intent of the First Amendment.
* Institute for Justice. A previous version of this article was published in The Weekly Standard, Vol. 16, No. 11. The article is republished here with permission.
1 130 S. Ct. 876 (2010).
2 Quoted in Darlene Superville, Obama Weekly Address VIDEO: President Blasts Supreme Court over Citizens United Decision, Associated Press, Jan. 23, 2010, available at http://www.huffingtonpost.com/2010/01/23/obama-weekly-address-vide_n_434082.html.
3 Press Release, Charles E. Schumer, U.S. Senator, Senate Democrats Unveil Legislation to Limit Fallout from Supreme Court Ruling that Allows Unlimited Special-Interest Spending on Elections—Announce Plan for Senate Passage by July 4 (Apr. 29, 2010), available at http://schumer.senate.gov/new_website/record.cfm?id=324343.
4 Press Release, Chris Van Hollen, Member, U.S. House of Representatives, Van Hollen Remarks on Supreme Court Ruling in Citizens United Case (Jan. 21. 2010), available at http://vanhollen.house.gov/News/DocumentSingle.aspx?DocumentID=167326.
5 163 U.S. 537 (1896).
6 Scott v. Sanford, 60 U.S. 393 (1857).
7 Rob Kall, Real Vampires, Their Human Cattle and Supreme Court Capos: Time to Declare War on Corporate Personhood, Huffington Post, Jan. 25, 2010, http://www.huffingtonpost.com/rob-kall/real-vampires-their-human_b_434612.html.
8 Get Money Out, http://www.getmoneyout.com/ (last visited Nov. 14, 2011).
9 Arin Greenwood, OccupyDC Protest: Group Pushes Repeal of Citizens United, Corporate Personhood, Huffington Post, Oct. 1, 2011, http://www.huffingtonpost.com/2011/10/01/occupydc-citizens-united-corporate-personhood_n_989690.html.
10 2 U.S.C. 441b.
11 2 U.S.C. § 441b(b)(2).
12 Transcript of Oral Argument at 20, Citizens United v. FEC, 130 S. Ct. 876 (2010), available at http://www.supremecourt.gov/oral_arguments/argument_transcripts/08-205.pdf.
13 Transcript of Oral Argument at 65-66, Citizens United v. FEC, 130 S. Ct. 876 (No. 08-205), available at http://www.supremecourt.gov/oral_arguments/argument_transcripts/08-205].pdf.
14 494 U.S. 652 (1990).
15 540 U.S. 93 (2003).
16 Editorial, The Court’s Blow to Democracy, N.Y. Times, Jan. 21, 2010, available at http://www.nytimes.com/2010/01/22/opinion/22fri1.html?_r=1.
17 Van Hollen, supra note 4.
18 Citizens United, 130 S. Ct. 876, 950 n.55 (Stevens, J., dissenting).
19 Austin v. Mich. Chamber of Commerce, 494 U.S. 652, 660 (1990).
20 See Barron v. Baltimore, 32 U.S. 243, 250 (1833) (The amendments “demanded security against the apprehended encroachments of the general government . . . .”).
21 Citizens United, 130 S. Ct. at 905-07.
22 Id. at 917 (Roberts, C.J., concurring).
23 United States v. UAW-CIO, 352 U.S. 567, 597 (1957) (Douglas, J., dissenting). In an earlier case, Justice Rutledge, joined by Justices Black, Douglas, and Murphy, also dissented from the Court’s refusal to consider the ban. Justice Rutledge argued, “A statute which, in the claimed interest of free and honest elections, curtails the very freedoms that make possible exercise of the franchise by an informed and thinking electorate, and does this by indiscriminate blanketing of every expenditure made in connection with an election, serving as a prior restraint upon expression not in fact forbidden as well as upon what is, cannot be squared with the First Amendment.” United States v. CIO, 335 U.S. 106, 155 (1948) (Rutledge, J., dissenting).