Cross posted from The Albany Project
This is Part V of a series on the Citizens United v FEC decision.
Part I can be found here.
Part II can be found here.
Part III can be found here.
Part IV can be found here.
This next section, A 1, begins to get to the heart of the matter by stating:
The Court has recognized that First Amendment protection extends to corporations. Bellotti, supra , at 778, n. 14
... and going on to list numerous cases in which this idea is established. The next paragraph...
This protection has been extended by explicit holdings to the context of political speech. See, e.g., Button , 371 U. S., at 428–429; Grosjean v. American Press Co. , 297 U. S. 233, 244 (1936) .
Where just these 2 cases are cited. They go on...
Under the rationale of these precedents, political speech does not lose First Amendment protection "simply because its source is a corporation." Bellotti, supra, at 784; see Pacific Gas & Elec. Co. v. Public Util. Comm’n of Cal. , 475 U. S. 1, 8 (1986) (plurality opinion) ("The identity of the speaker is not decisive in determining whether speech is protected. Corporations and other associations, like individuals, contribute to the ‘discussion, debate, and the dissemination of information and ideas’ that the First Amendment seeks to foster" (quoting Bellotti, 435 U. S., at 783)). The Court has thus rejected the argument that political speech of corporations or other associations should be treated differently under the First Amendment simply because such associations are not "natural persons." Id., at 776; see id. , at 780, n. 16. Cf. id. , at 828 (Rehnquist, J., dissenting).
I’m with them for the most part but I think this begins to show why it is important to be very careful in creating conceptual precedents and why stare decisis (Latin for "to stand by things decided") is not an absolute (as the majority is quick to assert in explaining why they feel it’s ok to overturn Austin). The idea that corporations have a "voice" and that they add to "the discussion" is seema reasonable and understandable but by the end of the paragraph corporations seemingly cannot be differentiated from "natural persons." That is absurd on its face. So where does the line of reasonableness cross over into the land of the absurd? We’ll have to determine that in order to correct the error of this ruling.
During the ensuing discussion they touch upon another central issue - money in speech:
The concurrence explained that any " ‘undue influence’ " generated by a speaker’s "large expenditures" was outweighed "by the loss for democratic processes resulting from the restrictions upon free and full public discussion." Id. , at 143.
It is absurd to say that money is speech. Money is money, speech is speech. But it is not as simple as that. If I have something to say and say it, all well and good. If I decide to spend money to print it in a book and distribute it widely or purchase a 30 second spot on TV to distribute it to a wide audience then I am amplifying my speech. Is it ok for the government to regulate that? Is it ok for us to allow the government to decide how much speech is too much speech in that sense? If so, where do we draw that line? Money is not speech but that does not make it easy to regulate the use of money as a vehicle for amplifying and widely distributing speech.
In another case...
"Under our Constitution it is We The People who are sovereign. The people have the final say. The legislators are their spokesmen. The people determine through their votes the destiny of the nation. It is therefore important—vitally important—that all channels of communications be open to them during every election, that no point of view be restrained or barred, and that the people have access to the views of every group in the community." Id. , at 593 (opinion of Douglas, J., joined by Warren, C. J., and Black, J.).
The dissent concluded that deeming a particular group "too powerful" was not a "justificatio[n] for withholding First Amendment rights from any group—labor or corporate." Id. , at 597.
To summarize their argument in this section; corporations have speech rights, these include political speech and these rights are covered under the 1st Amendment. Further, there is no basis for differentiation between natural persons and unnatural persons and the fact that the speaker has gobs of money is not sufficient to restrict their 1st Amendment rights.
To return for a moment to the opinion of Justice Douglas cited above, "It is therefore... vitally important... that all channels of communication be open to [the people] during every election, that no point of view be restrained or barred, and that the people have access to the views of every group in the community."
Here we have the delicate balancing act and the reality of the impact of "too powerful" forces and their money. If Exxon Mobil is willing and able to pay $1 million for a 30 second ad during the Superbowl then the price of 30 second ads during the Superbowl will be $1 million or more. This means that the average citizen is effectively "restrained or barred" from having their voices heard in that manner because it is impossible for us to meet that entry barrier to speech. One can argue that we can still speak to our neighbor on the street but that is a far cry from purchasing TV ads which millions will see and hear. One can argue that a corporate PAC established to allow corporate speech is not really allowing the corporation to speak but even that corporate PAC is less restrained then all but the wealthiest handful of "natural persons" by comparison to the corporation with million dollar advertising budgets. How are "We the People" to have access to the "views of every group" in this economic structure?
In the next section the majority addresses Buckley and independent expenditures.
Before addressing the constitutionality of §608(e)’s independent expenditure ban, Buckley first upheld §608(b), FECA’s limits on direct contributions to candidates. The Buckley Court recognized a "sufficiently important" governmental interest in "the prevention of corruption and the appearance of corruption." Id., at 25; see id. , at 26. This followed from the Court’s concern that large contributions could be given "to secure a political quid pro quo ." Ibid.
Corruption or the appearance of corruption becomes an acceptable government interest for limiting the free speech rights, as expressed through the spending of money, of corporations by disallowing direct contributions to candidates.
They key part of Buckley was the elimination of a limitation on independent expenditures. The court found that direct contributions can be limited or banned but that independent spending cannot.
The Buckley Court explained that the potential for quid pro quo corruption distinguished direct contributions to candidates from independent expenditures. The Court emphasized that "the independent expenditure ceiling ... fails to serve any substantial governmental interest in stemming the reality or appearance of corruption in the electoral process," id. , at 47–48, because "[t]he absence of prearrangement and coordination . . . alleviates the danger that expenditures will be given as a quid pro quo for improper commitments from the candidate," id. , at 47.
They then go on to Bellotti
Less than two years after Buckley , Bellotti , 435 U. S. 765 , reaffirmed the First Amendment principle that the Government cannot restrict political speech based on the speaker’s corporate identity. Bellotti could not have been clearer when it struck down a state-law prohibition on corporate independent expenditures related to referenda issues:
As discussed earlier, "referenda issues" are a very different beast then electoral campaigns.
"We thus find no support in the First . . . Amendment, or in the decisions of this Court, for the proposition that speech that otherwise would be within the protection of the First Amendment loses that protection simply because its source is a corporation that cannot prove, to the satisfaction of a court, a material effect on its business or property. . . . [That proposition] amounts to an impermissible legislative prohibition of speech based on the identity of the interests that spokesmen may represent in public debate over controversial issues and a requirement that the speaker have a sufficiently great interest in the subject to justify communication.
Interesting! I recall during the FISA/illegal wiretapping battle that the Court rejected a challenge to Bush’s wiretapping program because the challenger could not prove that they were directly effected by it, a pre-condition to a challenge being that an individual had to show that they were being wronged in some fashion.
"... simply because its source is a corporation that cannot prove, to the satisfaction of a court, a material effect on its business or property ...."
Sideline issue, but it struck me hard upon reading it. A corporation does not lose its 1st amendment rights because it can’t prove that the discussion at hand has anything to do with it but a natural person can’t challenge the governments claim to be able to wiretap them at will because they can’t prove that they actually have been wiretapped. These constructions are not logically consistent.
Their conclusion to section 2:
Bellotti did not address the constitutionality of the State’s ban on corporate independent expenditures to support candidates. In our view, however, that restriction would have been unconstitutional under Bellotti ’s central principle: that the First Amendment does not allow political speech restrictions based on a speaker’s corporate identity. See ibid.
A strengthening of their central position that speech cannot be restricted based on the identity of the speaker... unless of course that speaker is a student, a prisoner, in the military or a government employee. But... close enough for court work.
Section 3 is short:
Thus the law stood until Austin . Austin "uph[eld] a direct restriction on the independent expenditure of funds for political speech for the first time in [this Court’s] history." 494 U. S., at 695 ( KENNEDY , J., dissenting). There, the Michigan Chamber of Commerce sought to use general treasury funds to run a newspaper ad supporting a specific candidate. Michigan law, however, prohibited corporate independent expenditures that supported or opposed any candidate for state office. A violation of the law was punishable as a felony. The Court sustained the speech prohibition.
To bypass Buckley and Bellotti , the Austin Court identified a new governmental interest in limiting political speech: an antidistortion interest. Austin found a compelling governmental interest in preventing "the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas." 494 U. S., at 660; see id. , at 659 (citing MCFL, 479 U. S., at 257; NCPAC, 470 U. S., at 500–501).
Their wording here is noteworthy:
"... for the first time in this court’s history..."
and
"To bypass Buckley and Bellotti...."
Justice Stevens goes into a lengthy debunking of this idea that Austin is an outlier. I will save that for later as it is an historical discussion all its own. Simply note here the use once again of inflammatory language that has not been substantiated.
- A claim that Austin is the first time the court has ever done a thing.
- That to do what they did in Austin they bypassed precedent existing by creating something new out of whole cloth.
Next, in section B, we get into three primary arguments for restricting corporate independent expenditures which the court is now rejecting.
- "the antidistortion rationale on which Austin and its progeny rest in part
- an anticorruption interest
- a shareholder-protection interest
1 - antidistortion
If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech. If the antidistortion rationale were to be accepted, however, it would permit Government to ban political speech simply because the speaker is an association that has taken on the corporate form.
And later...
("[T]he concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment "); Automobile Workers , 352 U. S., at 597 (Douglas, J., dissenting); CIO , 335 U. S., at 154–155 (Rutledge, J., concurring in result). This protection for speech is inconsistent with Austin ’s antidistortion rationale. Austin sought to defend the antidistortion rationale as a means to prevent corporations from obtaining " ‘an unfair advantage in the political marketplace’ " by using " ‘resources amassed in the economic marketplace.’ " 494 U. S., at 659 (quoting MCFL , supra , at 257). But Buckley rejected the premise that the Government has an interest "in equalizing the relative ability of individuals and groups to influence the outcome of elections." 424 U. S., at 48; see Bellotti, supra, at 791, n. 30. Buckley was specific in stating that "the skyrocketing cost of political campaigns" could not sustain the governmental prohibition. 424 U. S., at 26. The First Amendment ’s protections do not depend on the speaker’s "financial ability to engage in public discussion." Id. , at 49.
While I am deeply concerned about the distortion that one million dollars gives to someone else’s speech that I cannot balance out due to my lack of a million dollars I am likewise concerned that there may be no safe way to legislate an equalization of that distortion in an open society with a capitalist economy such as ours. Consequently I am reluctantly in agreement with what I am reading here until I get to the last sentence. For me, the last sentence creates a cognitive dissonance. Rather than supporting or being the conclusion of the rest of the paragraph it describes the problem created by it.
What they are saying is that a corporation does not lose its 1st Amendment protections simply because of its "financial ability to engage in public discussion." Equally covered in this statement however, I should not effectively lose my 1st Amendment protections due to my lack of "financial ability to engage in public discussion."
Despite the absolute wonders of blogs on the internet, I am unable to engage in the public discussion in the same manner as a corporation or individual with millions at their disposal. My 1st amendment protections are not receiving equal protection under the law directly due to my "financial ability to engage in public discussion."
The internet is the best thing to happen to free speech since the invention of the printing press as I am able to use this tool, as I am now, to make my views on the issues of the day known far beyond the limited circle of my daily life. In time this may well become the great equalizer. It has certainly changed the game already. However, a corporation can blog and it can dominate TV advertising. I can only blog. The distortion factor is very real even if it is legislatively difficult or impossible to solve.
As Kennedy points out, the government too saw the weakness of the argument and appears to have abandoned it as a primary rationale. But there is one key point I would like to pick out of the above for later consideration.
" Austin sought to defend the antidistortion rationale as a means to prevent corporations from obtaining " ‘an unfair advantage in the political marketplace’ " by using " ‘resources amassed in the economic marketplace.’ "
The issue of corporate personhood and corporations as associations of real people has been touched upon and will be discussed further. I am not familiar with the corporate law that brought into being the "useful fiction" of corporate personhood so will greatly oversimplify and generalize here but, it is my understanding that this was a creation enabling courts to deal with suits of natural persons against fictitious people, corporations, and is in fact useful in bringing corporations under existing law dealing with suits between natural people. Here we find this useful fiction being extended into the political realm in a manner that is, so far, unconvincing to me. For profit corporations are economic entities with making money as their sole purpose for existence. The differentiation of the economic from the political is a very real one in my eyes. We’ll see how this plays out in law.
One of the antidistortion arguments main points was "... that corporate funds may "have little or no correlation to the public’s support for the corporation’s political ideas." If that was the best they could do then the idea ought to be thrown out. It is nothing more than a hypothetical. If I yell over a crowd or have the only microphone so that no one else’s voice but mine can be heard there is no obvious correlation between what I say and the publics support for my position.
The next sentence the majority writes something that I think describes the depth of the actual distortion we are facing in America today.
All speakers, including individuals and the media, use money amassed from the economic marketplace to fund their speech.
Speech in its most fundamental sense issues from the mouth. It does not even cost the penny people offer us for our thoughts upon occasion much less the two cents we sometimes offer to pay to be heard. Here apparently, all the court is considering as speech is that of politicians and corporations with millions funding them. The voices of individual citizens are apparently not part of the consideration. It is a very sad state of affairs.
Putting that sentence back into the context of its paragraph presents an equally fundamentally misguided view of our life as a nation.
All speakers, including individuals and the media, use money amassed from the economic marketplace to fund their speech. The First Amendment protects the resulting speech, even if it was enabled by economic transactions with persons or entities who disagree with the speaker’s ideas. See id. , at 707 ( Kennedy, J. , dissenting) ("Many persons can trace their funds to corporations, if not in the form of donations, then in the form of dividends, interest, or salary").
Here we are presented with a world view in which economic existence precedes political existence and even the expression of human selfhood in speech. In order to engage in speech I must have an income in order to eat in order to survive in order to have the energy to open my mouth and speak on political issues. Granted eating is a requisite of life and he who isn’t eating is far more concerned with finding something to eat then he is with such lofty concepts as free speech and universal health care but wouldn’t this line of reasoning imply that the jobless and the starving have no political free speech rights? Taking a look at how our political system works, as exemplified by this decision, one could certainly make the case that this is how it works in America today. It is certainly descriptive of the effects of modern world politics and economics.
And that is the friendliest reading I can give this passage. A harsher reading would seem to imply corporate slavery. The implication here is that I am bound to my corporate employer and derive my very selfhood from my dependence upon them for my existence. As my views are anti-corporate dominance I am forcing corporations to fund my view with which they presumably disagree.
Let’s look at the last sentence, Kennedy’s quoting Kennedy’s dissent as support for Kennedy’s opinion here
("Many persons can trace their funds to corporations, if not in the form of donations, then in the form of dividends, interest, or salary").
"Many persons...." – If by many persons he means to imply "all people" then he is asserting that the corporation comes first and people second. If by many persons he means "some people" then what follows is immediately disqualified as support for a general proposition describing and effecting all people.
"Donations" – If a corporation donates money to a person or organization then the corporation has chosen to support whatever activity or speech that person or organization is already involved in. Apparently then, this is yet one more avenue for corporate free speech and one would presume their donations go to entities whose activities and speech they agree with.
"... Dividends, interest" – When people invest in a corporation by buying stock they take ownership of whatever portion of that corporation their stockholdings represent. This then is personal property of the investor. Dividends and interest paid on those holdings are economic benefits derived from ownership of that personal property. Stockholders own a share of the corporation not the other way around. While the money they use to purchase shares becomes part of the general treasury funds that are central to this case the fact is the shareholder is in constant ownership of their share of that general treasury.
"... or salary" – An employee trades their work to a corporation in return for money. At the beginning of the transaction the employee owns their work and the corporation owns the money. At the end of the transaction the corporation owns the work and the employee owns the money.
The food the employee or shareholder buys to sustain and enable themselves to speak therefore does not belong to the corporation and is not an act of corporate enabling of speech with which they may disagree. They are therefore wholly separate from the act of speech. Donations from a corporation to a third party are voluntary acts that are themselves a form of corporate speech through action.
Kennedy’s justification of himself by himself is nonsense.
Money is not speech. Speech does not cost money. Amplifying speech costs money. I am not a slave of the corporation and starving people’s voices are exactly the ones that need to be heard most in an enlightened society whose government is charged with to promote the general welfareof the people that are its sovereign.
I will stop this entry on that note. What have we learned today class?
Eating is funding speech.
In part 6 tomorrow we learn how a law that explicitly excludes media from its scope is unconstitutional because if it was applied to the media it explicitly excludes it would be unconstitutional.