Citizen's United: It Doesn't Say What You Think It Says

Citizens United

To paraphrase the character Iago Montoya in The Princess Bride, you keep using these words, but I do not think they mean what you think they mean.

The present cultural mythology is as follows: In the Citizen's United case, the U.S. Supreme Court declared corporations to be people, declared the expenditure of money to be free speech, and allowed corporations to donate unlimited amounts to political campaigns and thus buy elections.

That myth is incorrect on all three points. Since many of the individuals now advocating for a Constitutional Amendment to 'overturn' Citizens United are also railing about the teaching of the myth of creation in public schools, and advocating fact-based scientific education, I strongly urge you to use the same approach here. Read the actual decision and base your arguments on the accurate facts and not the emotionally and politically manipulative spin which has been created and marketed by vested interest machines.

A few journalists and bloggers -- including Dan Abrams, son of the attorney who argued the case for Mitch McConnell, The Media's Shameful, Inexcusable Distortion of the Supreme Court's Citizen United Decision -- have pointed out just how drastically the media (and the Democratic party) have mis-reported Citizens United, but those voices seem to be whistling into the wind. Now that the Dems are strongly advocating a Constitutional Amendment, it is time to exercise the duties of citizenship and read these criticisms as well as the decision itself, and the history of campaign reform legislation and First Amendment cases in the US, and make a knowledgeable decision regarding our country's course of action on campaign financing.

There is also this brilliant analysis in TruthOut that I urge everyone to read and share, specifically about the proposed Constitutional Amendment: The Problem with Citizen United is Not Corporate Personhood.



Read It.

You need to read the decision, and read it several times over, carefully. It is not long and it is in accessible English.  Here are two links to it, the first from the Cornell Law School library Legal Information Institute, the second from Bloomberg Law:

Corporations Treated as People at Law.

The Citizens United case did NOT establish the proposition that corporations are treated as persons at law. That has been the case internationally since the inception of corporations, and in the United States since at least 1819, when the U.S. Supreme Court recognized in The Trustees of Dartmouth College v. Woodward that corporations are, at law, the same as persons for purposes of entering and enforcing contracts; in 1888 when in Santa Clara County v. Southern Pacific Railroad they stated that equal protection of the laws for all persons includes corporations; and in Pembina Consolidated Silver Mining Co. v. Pennsylvania in 188 they held that "Under the designation of 'person' there is no doubt that a private corporation is included [in the Fourteenth Amendment]. Such corporations are merely associations of individuals united for a special purpose and permitted to do business under a particular name and have a succession of members without dissolution."

The purpose of corporations is to create a legal entity -- effectively, a person for legal purposes -- separate from the individuals who found it; an entity which can engage in contracts, sue and be sued, be subject to regulation and penalty, and most critically to raise money for ventures while limiting or eliminating the risk of the personal assets of the founders and directors. That corporations are considered people at law is a well-established traditional legal principle that was in no way affected by the Citizens United decision. 

Corporations are the creations of law, and there is good reason to engage in serious and sober reflection as to whether our corporate laws are serving the best interests of the public, or whether they ought to be changed. Perhaps there should be regular review of corporate actions with far more discretion left to state governments to deny requests to renew corporate charters based on a list of publicly important factors like pollution, job creation, social justice and so on.  Perhaps we should look to a Rhenish system of capitalism, requiring labor, environmental interests, community and social justice interests to have voting representatives on all corporate boards.  A Constitutional Amendment to 'overturn' Citizens United could re-direct the way that business corporations buy elections -- but it won't do anything to affect fundamental corporate structure or corporate responsiveness to public needs from jobs to a clean environment to progress in the creation of services and invention and manufacture of goods. 

Money is Speech; Corporate Political Speech is Protected.

The U.S. Supreme Court held clearly in 1976 in the case of Buckley v. Valleo that spending money to influence elections is First Amendment protected free speech. Advertising --the expenditure of money to promote goods and services -- has been considered First Amendment protected free speech since the 1940s, though a string of cases has been differentiating between 'commercial speech' which can be more strictly regulated, and 'political speech' which is entitled to the highest protection and deference.  For example, the First Amendment protects outright lies in political speech and, subject to private civil action for defamation, in journalism. But commercial speech that falsely markets a product through deception can be punished by the government. 

Despite the limits of advertising regulation, the expenditure of money to promote a product, idea, service or position has been considered an exercise of Free Speech since the 1940s.  You -- whether you are a person or entity -- have the right to shout your political opinion from the rooftops with the upmost First Amendment protection, and if the rooftop you can afford happens to be a half-hour infomercial on a Fox channel, that's political free speech.  

All free speech can be regulated to some extent. 'Time, place and manner' restrictions are the most common and, if uniformly applied, most frequently upheld. This would include requiring protest marches to obtain permits or preventing protestors from blocking an alley which provides fire truck and ambulance access. But restrictions which attempt to restrict some speech based on the content of the message, or the identity of the speaker, are highly suspect under First Amendment law. "Premised on mistrust of governmental power, the First Amendment stands against attempts to disfavor certain subjects or viewpoints or to distinguish among different speakers, which may be a means to control content.  The Government may also commit a constitutional wrong when by law it identifies certain preferred speakers. There is no basis for the proposition that, in the political speech context, the Government may impose restrictions on certain disfavored speakers." Citizens United.

The Citizens United decision did NOT establish the proposition that spending money is a form of First Amendment protected expression; nor did it establish the proposition that the First Amendment applies to corporations (held by the U.S. Supreme Court in the 1970s in First Nat'l Bank of Boston v. Bellotti) and specifically to corporate free speech (NAACP v. Button).  

Direct and Indirect Spending; Non-profits and Unions.

Citizens United did not in any way alter the present restrictions on corporate (including non-profit), union or individual direct contributions to political campaigns. I'll repeat that because it's important. Citizens United did not in any way alter the present restrictions on corporate (including non-profit), union or individual direct contributions to political campaigns.  Corporations are prohibited from making direct campaign contributions from their own treasuries; they must establish specially designated and disclosed PACs for doing so. Citizens United did not change this. 'Overturning' Citizens United with a Constitutional Amendment would not in any way alter the ability of PACs -- or any wealthy individuals, like those 400+ billionaires we keep hearing about -- to 'buy elections.'

Citizens United only addressed indirect political expression, that is practices also commonly called electioneering.  Indirect political expression would involve me, or you, or a union, or a corporation, standing in the town square (or broadcasting on a paid ad on CNN, or taking out a page in the N.Y.Times) saying, "I don't work for the Ralph Nader for President Campaign, but by God, I've voted for this guy for decades and you should too. Get those dangerous Corvairs off our streets now!". 

The Bipartisan Political Campaign Reform Act of 2002 had banned electioneering type communications within 60 days of a general election, and had banned such communications if paid for by corporate -- including non-profit -- or union general funds. In other words, I as an individual could still buy my half-hour Pro-Ralph-Nader infomercial to air on late-night tv up to 60 days before the election, but my nonprofit organization which advocates freeing the road from the dangers of old Corsairs could not do so despite the message content and timing being identical.

Much hay is being made over Teddy Roosevelt's 1907 Tillman Act which prohibited corporate contributions to campaign. This act was followed by several amendments in an anti-corruption vein. Although it was a lovely sentiment designed to assuage the public's concerns about corporate involvement in politics, there was no FEC, no enforcement, no public disclosure of campaign finance, and such prohibitions are super easy to dodge. A common tactic then, as now, is for corporate directors or trustees to write maximum-contribution checks in their own names, then draw bonuses from the corporate treasury for reimbursement.

In 1947, Congress passed the Taft-Hartley Act which again banned corporate and union campaign expenditures -- this time because the public and Congress were afraid that labor unions were getting to strong and engaging in corrupting influence in politics. Like the Tillman Act this prohibition had little practical effect -- though it marks the beginning of the erosion of legal protection for trade unions.

You could perceive of Citizens United as overturning parts of the Tillman Act and Taft-Hartley, but these were really non-existent from their inception. Enforceable campaign finance law really did not start until the Federal Election Campaign Act of 1971, and that statute did not prohibit these independent expenditures.  The Bipartisan Political Campaign Reform Act of 2002 was the first modern direct attempt to prohibit corporate, non-profit, association and union independent expenditures. Citizens United overturned the ban put in place by the Bipartisan Political Campaign Reform Act of 2002 on electioneering communications by corporations, non-profits (the case particularly involved a non-profit), associations and labor unions.

Foreign Corporations.

Pundits and politicians including President Obama are saying that Citizens United opens the door for elections to be bought by foreign corporations. The Citizens United decision only addressed 2 USC 441b, and did not even look at 2 USC 441e, which explicitly prohibits foreign nationals from participating in political campaigns and electioneering.  FEC regulations at 11 CRF 110.20(i) state: 

A foreign national shall not direct, dictate, control, or directly or indirectly participate in the decision making process of any person, such as a corporation, labor organization, political committee, or political organization with regard to such person's Federal or non-Federal election-related activities, such as decisions concerning the making of contributions, donations, expenditures, or disbursements in connection with elections for any Federal, State, or local office or decisions concerning the administration of a political committee.

This absolute, broad prohibition was not in any way altered or affected or even considered by the U.S. Supreme Court in Citizens United.


Another popular myth is that Citizens United overturned the Bipartisan Political Campaign Reform Act of 2002's requirement of disclosure of the sources of funds for political ads. Citizens UnitedUPHELD, by an 8-1 vote, the requirement of disclosure of donors to political advertisements.

Anonymity in politics, and in public issues advocacy generally, is an interesting subject. I was railing against anonymity in letters-to-the-editor and commentaries in online news journals in a Communications Ethics course that I teach at Champlain College one day, when one of my students reminded me that most of the most critical advocacy at the time of the American revolution, including the Anti-Federalist Papers, were published anonymously.  Seeing a friend wearing a button for a political candidate, or seeing a lawn sign in the front yard of a local business advocating for a vote on an issue referendum, can carry a lot of positive weight -- if my friend is voting for Ralph Nader, maybe I will have to look into the guy and see what he's about.  But there is no denying that identifying yourself in a public statement about politics can spark profound negative and even violent backlash. Our First Amendment protections and the realm of political speech in America has long protected anonymous speech, and leaves it to the listener to decide whether to embrace or reject a message that comes from an unidentified source.

Be that as it may, Citizens United upheld the requirements of disclosure -- and the public should be extremely cautious that any attempt to 'overturn' Citizens United by Constitutional Amendment does not throw that baby out with the bathwater.

Effects You Might Not Have Considered.

At its core, the Citizens United decision overturned the prior Supreme Court in 1990 in the case of Austin v. Michigan Chamber of Commerce, which had upheld the state of Michigan's ban on independent corporate electioneering expenditures. In that case a Chamber of Commerce had sought to run an ad expressing its favorable sentiments towards a pro-small-business candidate for state assembly.  Under Citizens United, it is true that Exxon or Monsanto could buy electioneering communications indicating that they favor a candidate that is pro-oil-industry or pro-GMO, but local chambers of commerce could also run infomercials about which candidate has a better track record for small business support, and environmental organizations can promote the candidates who have committed to cleaning up air and water and developing alternative energy.

I notice that in the rush towards a Constitutional Amendment to 'overturn' Citizens United, no one is talking about the fact that it places non-profits and unions on equal footing with commercial business corporations. Business corporations with multi-million-dollar coffers will always find a backdoor way to fund political elections. Unless voters stop voting for candidates with deep pocket support, this trend will not stop. But labor unions and non-profits have had a harder time moving funds into advocacy arenas due to stricter limitations and monitoring of their funds and activities. Overturning Citizens United won't daunt billionaires -- and individual billionaires were never affected by the decision anyway -- but it will extinguish an avenue of political participation and communication for non-profits and unions.

The Deputy Solicitor General for the FEC, Malcolm Stewart, argued passionately that allowing the case of Austin v. Michigan Chamber of Commerce to stand would give the government the power to ban books published by corporations or unions if somewhere within that book they advocated or opposed the election of any given candidate or elected official. Electronic distribution of political books could be prohibited; unions and non-profits could be fined or face criminal charges for hiring a writer to write a book critical of a union-busting candidate or a candidate who had worked for a polluting company.

There are many potential fixes of the problem of big-money influence in politics -- the main one being a knowledgeable electorate who demands that candidates not take big money, and who does not elect such candidates. There is nothing whatsoever stopping political parties from declaring their own policies against taking corporate donations, or indeed from taking any donations over a certain dollar figure, say $1000.  It is ironic to hear that the Constitution must be changed to stop people from buying elections, from the very public officials who are apparently offering up elections for sale. It's not much different from the inspector in Casa Blanca stating he is shocked, shocked to find there is gambling at Rick's while being handed his winnings.

A Constitutional amendment overturning Citizens United will not get money out of politics, will not reduce monied influence -- corporate or not -- in elections, will not make corporations more responsive to the needs of the public, and will curtail unions, associations, non-profits and small businesses right along with the Exxons and Monsantos and Cargills of the world. It could wind up banning books and magazine and newspaper articles and radio interviews right along with prime-time television advertisements.

I do not think it means what you think it means. It is time for thoughtful, meaningful dialogue on the future of our democracy -- not profound gestures like a Constitutional amendment undertaken in knee-jerk fashion without thinking through all the factors, reasoning and consequences.