Friday, January 03, 2020

Corporations and Speech (A *Dorf on Law* Classic, with a new preface)

By Michael C. Dorf

Preface: Below is another in our series of winter break reruns. I'll briefly introduce it by noting that as we begin a new decade (at least so far as naming goes it's now the 20s), I tried to think back on the last one. In a recent post, Prof Segall identified Citizens United v. FEC as one of the top five most important SCOTUS cases of the last decade. I agree. It also came very early in the decade. Accordingly, I thought this a good time to revisit it.

In the short essay below, I argued that the best objection to the case was not that afforded corporations free speech rights--which was already the position the law took. In other writing (such as this column first published on January 25, 2010), I would develop the idea (which was hardly mine alone) that the real sin of Citizens United was its far too narrow understanding of corruption. In retrospect, I don't think we can say that all or even most of our current political woes are the result of Citizens United alone; but it certainly exacerbated other dysfunctional elements of our political system. Okay, the rest comes from an essay originally published on January 21, 2010, a few hours after the ruling was handed down:


Overturning two precedents, this morning the Supreme Court invalidated the application of the Bipartisan Campaign Reform Act (aka McCain-Feingold) to corporate-funded independent expenditures.  I'll have more to day about the case--Citizens United v. FEC--in my FindLaw column and an accompanying post here on Monday.  (My preview of the issues back in August appears here.)  For now, here is a quick observation about the constitutional rights of corporations.

Neither the majority nor the dissent directly cites Santa Clara County v. Southern Pac. RR, the 1886 case that said that corporations are persons under the Fourteenth Amendment.  However, the spirit of Santa Clara County could be said to hover over the opinion.  Part III(A)(1) of the opinion begins with the following statement: "The Court has recognized that First Amendment protection extends to corporations."  There then follows a citation of over 20 First Amendment cases involving corporate speakers.  First on the list is First National Bank of Boston v. Bellotti, which relies on Santa Clara County in footnote 15.   Then-Justice Rehnquist dissented in Bellotti, arguing that because Santa Clara County simply assumed that corporations are persons under the Fourteenth Amendment, it should not be controlling in First Amendment cases.

Was Rehnquist (who is looking better and better in retrospect, gulp!) right?  Many progressives have long argued that Santa Clara County was at the root of much of the mischief done by the conservative Supreme Court from the 1880s through the 1930s.  There is much to that complaint; the doctrine might have made more sense if, when the asserted rights of corporations were involved, courts were required to ask whether the constitutional rights of natural persons were infringed.

Nonetheless, even if Santa Clara County is a pernicious decision in other categories of cases, it does make some sense to treat corporations as though they have free speech rights.  Why?  Because, as a textual matter, the First Amendment protects the "freedom of speech," rather than the freedom of any particular speaker. That is why, for example, in Lamont v. Postmaster General, the Supreme Court invalidated a restriction on the receipt through the mails of "communist political propaganda," without any inquiry into whether the particular mail in question (in the lead case, "Peking Review #12") was sent by a person or entity that had a right to communicate with Americans.  The speaker as such is irrelevant.

That is not to say that the majority in Citizens United got it right.  The premise of Austin v. Michigan Chamber of Commerce--overruled in Citizens United--was that corporate campaign speech poses particular dangers not posed by speech by other sorts of actors.  Justice Stevens, dissenting in Citizens United, fully accepts that corporate speech is prima facie valuable.  But that is only the start of the inquiry.  I would end up where the dissenters end up.  Indeed, the majority opinion strikes me as remarkably tone-deaf to current political reality.  Here is how I put it in a joint statement with my colleague Steve Shiffrin for a Cornell University press release (speaking for ourselves rather than for the university, of course):
Today's decision in Citizens United v. FEC could pave the way for even further corporate domination of American politics.  For over six decades, federal law has sought to combat the corrupting influence of accumulated wealth on our democracy by forbidding corporations from using general revenues to support or oppose particular candidates for office.  In light of recent legislation such as the TARP, it would be highly disingenuous at best to argue that this prohibition has prevented well-heeled corporations from making their voices heard in the political process.   Moreover, the invalidated restriction was not, as the Court claimed, a "ban" on corporate speech: federal law permits corporations to create separately funded Political Action Committees to promote or oppose candidates for office.  In tone and spirit, the majority opinion in Citizens United calls to mind an earlier period of conservative judicial ascendancy, when the interests of corporations were central to the Court's constitutional vision.

1 comment:

Joe said...

Yes, the specific evil of the opinion is too often oversimplified (they treated corporations as people, my friends!), and that is problematic.

The concerns of corruption as well as foreign involvement (which Rick Hasen has noted is a problem, even if Justice Alito shook his head at Obama for saying it) in that respect is a key matter here.

Also, even the possible limits -- such as disclosure -- are not being used in the fullest sense. Not taking proper concern of corruption when the head of your party is Donald Trump is hard, to be fair.