Oxford University Press USA is putting together a series of articles on a political topic each week for the next four weeks in anticipation of the Republican and Democratic National Conventions, and American presidential race. This week our authors are tackling the issue of money and politics.
By Alexander Tsesis
The Supreme Court’s recent equation of personal and corporate campaign contributions has vastly increased corporate and super PAC donations during this election year. The Court’s premise that corporations deserve the same right to political speech as ordinary people is a modernist interpretation that would have sounded completely foreign to the framers of the Declaration of Independence. It is particularly curious that self-proclaimed originalists — Justices Antonin Scalia and Clarence Thomas — joined judicial opinions striking key provisions of the bipartisan McCain/Feingold Campaign Finance Reform Act and the Montana ban on corporate campaign spending. Political speech at the time of independence only applied to natural persons and had nothing to do with corporations. Indeed, in 1776 corporations were entities operating through personal charters granted by legislatures, not the general incorporated entities of today that shield shareholders and boards of directors from liability.
At the tail end of this year’s term, the Supreme Court reconfirmed its earlier holding in the well know Citizens United v. Federal Election Commission case, which found that any campaign finance laws that treat corporations and individuals differently violate the First Amendment. These judicial opinions expressed a view that was incompatible with principles that informed the framers of the Declaration of Independence.
To many political insiders, the outcome of Citizens United was somewhat surprising because, unlike voters, corporations are only metaphorically persons; in reality, they are artificial entities that are governed by special laws. To search for the core value of political speech we need look no further than the Declaration of Independence. The founding generation insisted that government be based on the consent of the people. They rebelled for lack of representation in the British Parliament and determined to establish a nation where voting would be an inalienable right of qualified citizens. But corporations have no inalienable rights. The Declaration’s famous assertion that “all men are created equal… [and] they are endowed by their Creator with certain unalienable Rights” simply doesn’t apply to entities with “perpetual life” that are created by articles of incorporation. As a creature that owes its existence, form, and structure to the state, no corporation has the inalienable rights that informed the Declaration of Independence’s framers’ notion of political community. Having no natural rights — but only positive regulations on creation, operation, and dissolution — corporations’ communications can be restricted differently than the speech of ordinary people.
The Declaration of Independence insisted that ordinary people are the true sovereigns of a nation that is governed by principles and institutions that further “safety and happiness.” Elections are critical to achieving those ends. In many of the Declaration’s paragraphs, the framers renounced the British government for being unresponsive to the people and established the enduring principle that our country enjoy the benefits of popular sovereignty. Unchecked corporate expenditures on behalf of favored candidates can be used to curry political favors that benefits a small sector of the population but harm ordinary Americans already reeling from the economic hardships.
An essential feature of the newly founded nation was, and continues to be, government by consent of the people. While foreign citizens have no right to participate in representative elections, a corporation whose board of directors may be composed of foreigners with no legal status in the United States, can give freely to politicians’ even though they cannot vote in any election.
At the oral argument to Citizens United, Justice Ruth Bader Ginsburg asked rhetorically why Congress could not set different campaign finance standards for corporations and ordinary people given that, in her words, “[a] corporation, after all, is not endowed by its creator with inalienable rights.” She received no reply from the attorney, and her insight into the connection between the Declaration’s political ideals and constitutional interpretation didn’t enter into the majority or dissenting opinions.
Neglect of the Declaration of Independence is unfortunate. The document’s statement of “life, liberty, and the pursuit of happiness,” as Justice William O. Douglas expounded, have “found specific definition in the Constitution itself, including of course freedom of expression.” The existence of an intrinsic right of citizens to pick leaders is presumed in the Declaration of Independence, but to this day corporate entities do not have voting privileges in general elections; and we can only hope that won’t change. In Citizens United and the more recent case striking Montana’s corporate finance law, the Court might have done well to follow its own assertion, made more than a hundred years ago, that “it is always safe to read the letter of the Constitution in the spirit of the Declaration of Independence.” That document speaks to us today as it did to the framers, but its protection of inalienable rights extends to natural persons not corporations.
Alexander Tsesis is Associate Professor of Law at the Loyola University, School of Law-Chicago. He is the author of For Liberty and Equality: The Life and Times of the Declaration of Independence; We Shall Overcome: A History of Civil Rights and the Law; The Thirteenth Amendment and American Freedom; and Destructive Messages: How Hate Speech Paves the Way for Harmful Social Movements.
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