Citizens United v. Federal Election Commission
|We the People do ordain and establish this|
|Standards of review|
|Other legal theories|
|Defining moments in law|
“”... and that government of the people, by the people, for the people, shall not perish from the earth.
|—Abraham Lincoln failing at divination during his 1863 Gettysburg Address|
“”We favor such additional legislation as may be necessary more effectually to prohibit corporations from contributing funds, directly or indirectly, to campaigns for the nomination or election of the President, the Vice-President, Senators, and Representatives in Congress.
|—Republican Party Platform... of 1912|
Citizens United v. Federal Election Commission was a very controversial decision by the United States Supreme Court, holding that corporations, unions and not-for-profit organizations cannot be restricted from funding electioneering broadcasts. The decision struck down a provision of the McCain-Feingold Act of 2002 that prevented corporate funding of political broadcasts within a certain period of time before an election as unconstitutional under the free speech clause of the First Amendment: Citizens United had produced a film called Hillary: The Movie ("a feature-length negative advertisement" according to the Supreme Court judgment) and paid for it to be broadcast on cable TV. The decision has been cited as a potential change in the Roberts Court's stated philosophy of "incremental" change.
While the decision has its ardent supporters, many fear the change it will have on US politics. In fact, more Americans believe in witchcraft than believe that the ruling will not lead to corruption. It is widely seen as ideologically motivated, and possibly more so than the infamous Bush v. Gore decision of 2000.
In his 2010 State of the Union speech, President Barack Obama said "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, it overruled a law eight, not a hundred years old, the decision did not affect any bans on foreign corporations, and did not affect the limits on corporate direct contributions to a campaign, but spending on behalf of a campaign. Obama was paraphrasing the dissent opinion: "The Court today rejects a century of history when it treats the distinction between corporate and individual campaign spending as an invidious novelty born of Austin v. Michigan Chamber of Commerce, 494 U. S. 652 (1990)." This was a reference to the 1907 "Tillman Act," which prohibited any "contribution or expenditure" by a corporation or union "in connection with any [federal] election to political office."
The legality of restrictions on campaign spending by corporations had been established by an earlier Supreme Court case, Austin v. Michigan Chamber of Commerce (1990). The McCain-Feingold Act had already been upheld by McConnell v. Federal Election Commission (2003). Hence, the Supreme Court needed to overturn a considerable amount of precedent, especially as they had rejected a string of arguments from Citizens United as to why they hadn't violated the law (CU had argued that they weren't a commercial organisation, that their film was not an electoral communication but merely a documentary exploration of contemporary issues, that it hadn't been watched by enough people to count, etc; the court dismissed all of this with considerable curtness).
The court noted the enormous importance of the First Amendment in protecting political speech to allow a functioning democracy, which few could argue with. They produced a large amount of law arguing that corporations had first amendment rights, almost all of which related to media organisations: Time, Inc. v. Firestone (1976); New York Times Co. v. United States (1971); New York Times Co. v. Sullivan (1964); etc. They pointed out that there is overwhelming public interest in allowing media corporations to have freedom of speech.
The court then argued that it was unfair to discriminate between media outlets and other corporations, so all corporations should get the same freedom as media companies, regardless of public interest. They depended on some rather shakier arguments for this: emphasising the importance of free speech to all; claims that any restriction on the First Amendment should be clear and not susceptible to endless litigation; prior cases of questionable relevance that claimed that it was improper to discriminate over who should and shouldn't have First Amendment rights.
In particular, it found that just because corporations have advantages in law compared to people (perpetual life, lower taxes, limited liability), that did not justify depriving them of other rights; this depended not on an actual precedent but on Scalia's losing dissent in Austin v. Michigan Chamber of Commerce, 494 U. S. 652 (1990). This seems to suggest that corporations actually have more rights than citizens.
Citizens United hinged on the principle that corporations are people.
This is not a new notion in American jurisprudence. The corporate form of organization has been treated as a "separate legal person" since its inception. (In fact, to "incorporate" means to form a body, i.e. the body of an entity that will be treated as an artificial person under the law.) This allows a corporation to own property in its own name, to hire employees, to sue, and to be sued, separately and distinctly from the individuals who own shares in it. This gets around the rather sticky issue of contract liability inherent in business forms such as partnership, in which at least one person has to be the "real" owner of all the firm's property. It also allows the existing body of statutes and common law decisions regarding "persons" to operate for them.
The only question this leaves open is how far the statutes and the courts are willing to take the personhood of corporations. For example, although natural persons can marry and vote in elections, artificial persons such as corporations cannot. In 1886 Chief Justice Morrison Waite made a widely-reported comment that the 14th Amendment, which says that no state shall deny to any "person" the equal protection of the laws, applies to corporations as well as natural persons, but he didn't include it in his final judgment. The 1936 Supreme Court case Wheeling Steel Corp. v. Fox, 298 U.S. 193, strongly implies the same thing.
As mentioned above, there is clear understanding that media corporations have rights of free speech, in the interests of the public; however the media's business is disseminating ideas, and it is not obvious other corporations in different lines of work have the same need for free speech. Burwell v. Hobby Lobby (2014) extended the First Amendment right of religious freedom to corporations; while Los Angeles v. Patel (2015) gave corporations a Fourth Amendment right to privacy; and Horne v. Department of Agriculture (2015) gave corporations Fifth Amendment rights against unlawful seizure of property without compensation. Law professor Edmund Kitch opined in 2015, "Courts decide on an issue-by-issue basis as to what provisions of a constitution affect corporations." Legislation has the power to restrict corporate activities only if it doesn't conflict with what the court assesses are constitutional rights. In 2015 The Atlantic concluded "corporations have nearly all the same constitutional rights as individuals".
Even Chief Justice Roberts, who wrote the majority Opinion for the Citizens United case, feared what might happen if the case became a legal precedent for other extensions of corporate "personhood," and wrote that the case should not be considered a precedent. Well... thanks?
One may have noticed that recent expansions of the concept of corporate personhood (and agitation for yet more expansion) is always in the direction of giving more rights to corporations, but never additional responsibilities. Rarely does anyone suggest that if corporations were given the full rights of actual living people then they should also be subject to the same penalties, such as imprisonment (suspension of business for a stated length of time) or the death penalty (dissolution or nationalization).
- How Corporate Money Will Reshape Politics, The New York Times, 21 January 2010
- CITIZENS UNITED v. FEDERAL ELECTION COMM’N ( No. 08-205 ), Legal Information Institute, Cornell
- Citizens United v. Federal Election Commission, Cornell University Law School
- What Congress Should Do About Citizens United?, SCOTUSblog, 24 January 2010
- More Americans Believe In Witchcraft Than Agree With Citizens United, Think Progress, 24 April 2012
- Washington Post-ABC News poll, 8 February 2010 (see item #35)
- Cecil Adams' Straight Dope article on corporate personhood.
- The U.S. Supreme Court's Cultivation of Corporate Personhood, The Atlantic, 2015
- UVA Lawyer