Editor’s note: This op-ed is by Rob Hager and James Marc Leas, lawyers active with Occupy Wall Street in their respective towns. Hager is an experienced public interest litigator while Leas specializes in patent law.
Vermont Sen. Bernie Sanders and Florida Rep. Ted Deutch introduced a constitutional amendment in December to overturn Citizens United and “to expressly exclude for-profit corporations from the rights given to natural persons.”
However, a close reading of Citizens United shows that constitutional rights of corporations played no role whatsoever in the Citizens United decision.
The incorrect — but widely held — reading of Citizens United is that the corruption of elections arose fundamentally because the Supreme Court adopted a legal doctrine of corporate “personhood” which endowed corporations with First Amendment free speech rights which, combined with the notion that spending money to promote a candidate is a form of speech, gives corporations the right to spend unlimited amounts of their money in elections. This incorrect reading of Citizens United is compounded by the further error that a constitutional amendment is necessary and sufficient to remove those corporate constitutional rights and to remove corporate money from elections.
Fortunately, the inordinate influence of private money in elections can be fixed, and the fix is far easier to accomplish — and more certain of success if accomplished — than any kind of constitutional amendment, as described in “Constitutional Amendment Not Needed.”
As to corporate rights, what is true is that the legal fiction of corporate personhood was created to apply the 14th Amendment to protect corporations from certain state regulations and taxes during the first Gilded Age (1870-1900). The 14th Amendment prevents any state from depriving “any person” of property without due process of law nor denying “any person” of the equal protection of the laws.
Although the 14th Amendment mentions “persons” in several places, the First Amendment — the amendment that the court used for empowering corporations in Citizens United and other election cases — does not even once mention the word “person.”
In Citizens United, the Supreme Court did not base its pro-corporate First Amendment decisions on supposed “constitutional rights” of corporations. Instead it heavily relied on reasoning from a 1976 elections case in which it reinterpreted the First Amendment to equate spending money in politics with protected speech. It also heavily relied on reasoning from a 1978 elections case in which it reinterpreted the First Amendment to apply as a right of the listener – a real human being — rather than as a right of the speaker – a corporate entity. The court clearly explained that it was neither creating a corporate right nor relying on any notion of corporate personhood. In fact in this 1978 case, the U.S. Supreme Court shot down the court below for anachronistically framing the argument as one of corporate rights and corporate personhood:
“The Court below [the Supreme Judicial Court of Massachusetts] framed the principal question in this case as whether and to what extent corporations have First Amendment rights. We believe that the [Massachusetts Court] posed the wrong question. The Constitution often protects interests broader than those of the party seeking their vindication. The first amendment, in particular, serves significant societal interests. The proper question therefore is not whether corporations ‘have’ first amendment rights, and if so, whether they are coextensive with those of natural persons. Instead, the question must be whether [the statute] abridges expression that the first amendment was meant to protect. We hold that it does. …
“The inherent worth of the speech in terms of its capacity for informing the public does not depend upon the identity of its source, whether corporation, association, union, or individual. …
“The First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw.”
Expressly following the approaches taken in these two cases, the court broke no new ground in Citizens United when it ruled that:
“… voters must be free to obtain information from diverse sources in order to determine how to cast their votes. …
“… When Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves.”
Thus, the court defined First Amendment freedom of speech from the perspective of the listener – the voter — rather than the speaker. The identity of the speaker is downgraded in the court’s analysis. The court based its decision in Citizens United on the abstract idea of freedom of speech and on the right of the voter to hear all possible views: Congress cannot interfere in the marketplace of ideas, it does not matter who or what is putting the ideas out, the public has a right to hear all sources, consider, and decide for itself and not be restricted by Congress. Whether the sources be corporations, partnerships, other business entities, individuals, associations, or nonprofits. The court relied on the phrasing of the First Amendment to rule that Congress could not abridge “freedom of speech” in the abstract, irrespective of the source of the speech or the rights – or absence of rights — of the speaker. Corporate personhood was irrelevant.
No matter how good the court’s First Amendment analysis may sound it is actually seriously flawed. As the dissent by Justice Stevens points out, it fails to give serious weight to the harm caused by the speech and the fact that the corporate sponsored speech is mostly transactional — that is, the corporate money spent on political advertising is most often an investment.
As stated by Justice James C. Nelson, dissenting from what he considered a futile effort by the Montana Supreme Court to insulate Montana from the pernicious and unconstitutional effects of the Citizens United decree,
“Citizens United distorts the right to speech beyond recognition. Indeed, I am shocked that the Supreme Court did not balance the right to speech with the government’s compelling interest in preserving the fundamental right to vote in elections. Western Tradition Partnership v. Attorney General Bullock (Montana, December 30, 2011).”
Based on a typical First Amendment balancing of communicative content versus harm, speech, such as insider trading tips, conspiracy to commit a crime, pimping, and publishing the name of a rape victim have all properly been criminalized. Even more does Congress have the right and responsibility to ban money in politics that not only corrupts democracy but that also turns elections into a profit center by corporations.
For example, a study done by Raquel Alexander, Susan Schola and Stephen Mazza of the University of Kansas found a financial return on investment of $220 for every dollar spent on lobbying, including election cycle lobbying. This and other evidence of corruption was found to be unimportant by the pro-corporate Supreme Court majority in Citizens United. The court instead willfully misinterpreted the language of the First Amendment as providing such absolute right to an abstract listener to hear corporate advertisements as to overshadow the public’s greater interest in preventing private money from corrupting elections and government, disenfranchising the many by the money, and causing elected politicians to divert federal and state money toward their corporate benefactors.
In Citizens United the court did recognize that Congress can limit “contributions” to candidates based on harm that the court identified as corrupting. But the court asserted that “independent election expenditures” by corporations, such as through political action committees or “super PACS,” could not cause such harm and so that corporate speech was deemed protected by the First Amendment.
To reach its decision the court overruled a fully supported legislative finding that such independent corporate spending in elections causes sufficient harm to justify its regulation, even accepting the distorted view that money in the form of electioneering expenditures is the kind of speech the First Amendment was intended to protect.
The court’s basis for the vast flood of corporate money corrupting the 2012 elections had nothing to do with corporate personhood or any other rights of corporations. Abolishing corporate constitutional rights or the legal concept of “corporate personhood,” as it applies to elections, would have no effect on the court’s analysis in Citizens United because none of its decisions mentioned, relied upon, or in any way depended on that concept or any rights of corporations.
Fortunately, an effective strategy does not require a constitutional amendment, whether for the irrelevant task of repealing corporate personhood or for the imperative task of excluding private money – not just for-profit corporate money — from elections.
Without the corporate personhood and constitutional amendment diversions, Sen. Bernie Sanders, Rep. Ted Deutch and an aroused public can demand that Congress use its existing constitutional powers under Article III Section 2 to restore the traditional limits on court jurisdiction over the political question of private money in elections. Then Congress will be free to pass legislation abolishing corrupting private finance of elections. While substantial public pressure is still needed for Congress to pass this legislation with ordinary majority votes, the barrier to success is far lower than the ⅔ vote in each house and ratification by ¾ of the states required for a constitutional amendment. This direct route to restoring government of, by and for the people addresses the actual constitutional problems raised by the court, removes court power to find other creative vehicles to corrupt elections, and is available now without a constitutional amendment.
The post Hager & Leas: Corporate personhood is not the problem with Citizens United appeared first on VTDigger.