Free Speech for Plutocrats: One Year Later

David Forte

January 1, 2011

It is the one year anniversary of Citizens United v. Federal Election Commission, the case that held that corporations and unions have a First Amendment right to expend funds directly supporting or opposing a candidate for elective office. Previously, corporations could sponsor issue advertisements, but now they could speak about the candidate’s fitness for office. In other words, the Court had declared that corporations have a right to engage in classic political speech, for whom to vote for or against is about the purest form of political speech that there is.

In reaching its decision, the Court (by a 5-4 vote) overruled one case, part of another, and voided a key provision of the McCain-Feingold Act. Contrary to the claims of critics at the time the decision was rendered—critics that included President Obama—the decision left intact laws that forbade the direct contribution of corporate funds to a candidate’s campaign, as well as laws requiring the disclosure of the source of corporate campaign contributions. But the exaggerated rhetoric continued nonetheless. Corporations, it was charged, could now buy any election. Another common attack was that corporations were not “persons,” except by a legal fiction, and should not possess First Amendment rights—a favorite stance of the American Friends Service Committee, which has embarked on a “Move To Amend [the Constitution] campaign to strip constitutional rights from corporations.”

A year’s experience with the Court’s decision, however, reveals how legally correct and politically beneficial it is.

Consider the question of the First Amendment rights of corporations. In 1964, L.B. Sullivan, a commissioner of the city of Montgomery, Alabama brought a libel suit against The New York Times for running a libelous advertisement. But Sullivan did not sue The New York Times. He sued The New York Times Corporation. The jury returned a verdict of $500,000 in Sullivan’s favor. But the Supreme Court reversed and held that the First Amendment gives special protection to those who criticize public officials, including, obviously, this corporation. For the Court, Justice Brennan declared, “[W]e consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” Four years later, the Court likewise protected Hustler Magazine Corporation from suit when it published an indecent satire against Jerry Falwell.

With those precedents in mind, the McCain-Feingold Act exempted media corporations from its restrictions. But why should some for-profit corporations (e.g., the New York Times and Hustler Magazine) be allowed to support the election of candidates that favor their public policy interests, while other corporations (e.g., Exxon-Mobil) not be allowed to support candidates that favor public policy views in accord with their interests? The ACLU is also a corporation, as is the Communist Party USA, and in fact, the American Friends Service Committee is a corporation.

Ira Glasser, former Executive Director of the ACLU, vigorously supported the Court’s decision in Citizens United. He noted that the government had tried to suppress corporation speech before, and the ACLU itself was often the target. Floyd Abrams, liberal defender of free speech causes before the Supreme Court likewise took issue with liberal critics of the decision. Abrams praised Justice Kennedy’s extensive opinion pointing out that “Justice Kennedy cited twenty-five cases of the Court in which corporations had received full First Amendment protection.”

Of course, one can debate what kinds of speech the First Amendment protects: political, commercial, obscene, libelous, offensive, indecent, religious, criminal. One can argue over what modes of speech should be allowed: newspapers, magazines, books, leaflets, pamphlets, billboards, loudspeakers, parades, dancing, graffiti. One can discuss where expression can be allowed: streets, parks, sidewalks, telephone poles, busses, government property, classrooms, theatres. But where the law determines who can speak, and who cannot speak, then we are on very dangerous ground indeed, ground that tyrannies have trod in the past.

In a recent debate I had with a representative of the
American Friends Service Committee, I pointed out that my interlocutor
thinks corporations are a bane, and that he wishes to have the law
destroy corporations by taking away their legal personhood. His right to
advocate that position is fully guaranteed under our system. “But suppose he decides to run for office on the platform of changing the law to remove the legal status of person from corporations,” I said. “Under his theory of the Constitution, the corporation would have no right to defend itself by running advertisements asking people not to vote for the person who would destroy them.” That’s free speech for me but not for thee.

The [F]irst Amendment’s protection of freedom of the press is, as everyone who drafted the amendment knew, a protection not of printers or of any particular entity. It was the protection of an activity no matter who or what carried it out, namely, the spreading of opinions and facts about political issues and political personalities. Whether people engage in political speech as individuals or as legally organized and recognized groups of individuals, they all have the same right.

The experience of the last year has also demonstrated that the political process has benefitted from involvement of corporate free speech. We should remember that the juridical person of the corporation is nothing more than an association of human persons and other entities (all of whom we call shareholders) gathered for a common purpose. In a real way, the human persons who are shareholders speak through the corporation, and their voices are more powerfully coordinated because of the corporation’s ability to focus financial resources. In other words, corporate involvement in elections enhances the free speech rights of the individuals who are the corporation’s shareholders.

In the last election, the infusion of corporate money helped even the playing field. In the previous three national elections, 2004, 2006, and 2008, Political Action Committees allowed by the law favored Democrats by nearly three to one in contributions: $667 to $242 million in contributions. But in 2010, the total amount of money spent on Republican candidates slightly exceeded that spent on Democrats. It used to be a rule of thumb that, because of the name recognition advantage of incumbents, challengers were almost always at a disadvantage. But the new money challenging incumbents (plus an effective use of attack ads and some very good issues) neutralized the incumbent’s advantage in many cases.

In the American system of government, the Framers expected that the House of Representatives would reflect the changing political
mood of the people, while the Senate would be more stable over time. Yet, because of sophisticated gerrymandering and the added advantages given to incumbents by campaign finance laws, the number of House districts that were contestable shrank to an estimated 25 (out of 435) during the decade of the 1990s. But in 2010, in part because of new money generated from and through corporations and unions, over 100 seats were in real play.

Thus, we can say that the Court’s decision in Citizens United v. Federal Election Commission has given lift to our freedoms and to our representative democracy.

David Forte is Professor of law at Cleveland State University and a fellow of the Ashbrook Center.