Is The Corporation The Person?
REFLECTIONS ON CITIZENS UNITED v. FEDERAL ELECTION COMMISSION
SPEECH BY JOEL SELIGMAN
MAY 6, 2010
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 that
Citizens 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. Maryland under
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 in Texas 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 in Buckley 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 in Bellotti 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 McCainFeingold 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:

Sierra Club runs an ad in within 60 days of a general election
exhorting the public to disapprove a Congressman who favors logging
in national forests.

National Rifle Association publishes a book urging the public to vote
for the challenger because the incumbent Senator supports a handgun
ban.

The ACLU creates a web site telling the public to vote for a
Presidential candidate in light of that candidates defense of free
speech.
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, the Austin
Court identified a new governmental interest in limiting political speech: an antidistortion 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.(quoting Austin). 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 this 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 which 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 90page 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 and
Bellotti: “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 Austin and McConnell rejected First
Amendment protection for corporations whereas Bellotti accepted it. The difference
is that the statute at issue in Bellotti 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.
Stevens explained: “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 United is 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.
Πηγή: http://www.rochester.edu/president/memos/2010/citizens-united.html
Ο Joel Seligman είναι καθηγητής και Πρόεδρος του Πανεπιστημίου του Rochester στη Ν. Υόρκη.