The First Amendment Wars: Calming Down about the Citizens United Decision
Part I – Where Citizens United fits in our First Amendment Jurisprudence
The uproar, mainly from the liberal side of the aisle (although some conservatives don’t like it either), over the Supreme Court’s recent First Amendment decision in Citizens United v. Federal Election Commission has been quite extreme. Not only did the President in his State of the Union address blast the Court for allegedly opening the floodgates for unnamed foreign corporations to use their vast resources to upend our electoral process, but certain influential Senators and others are now calling for an amendment of the First Amendment to exclude corporations from its coverage. All this over a decision that did nothing more than toss out, as in violation of the First Amendment’s protection of free speech, the portion of the McCain-Feingold campaign reform that made it illegal for corporations (including nonprofits) and labor unions to use money from their general funds for advocacy for or against the election of a candidate in a federal election in the 30 days before the election.
In other words, even if the Court had upheld this particular statute, corporations and unions would still have been free to use their general treasury funds for these purposes at any point prior to the 30 day period; furthermore, nothing in the statute limited their ability to run “issue” ads or, according to Justice Stevens, advocate in print for or against a federal candidate within the 30 day period. Additionally, as the majority in Citizens United recognized, the statute did not limit the ability of corporations and unions to urge the election or defeat of federal political candidates at any point through Political Action Committees (or PACs).
Given, then, that the decision dealt with a very limited restriction in effect only during the 30 days prior to an election and only affecting federal elections, why the massive outrage? To some extent, businesses must feel that it reflects a widespread anti-business bias, which, although not new, has been given new expression in the wake of the financial meltdown of 2008-2009 by many Democrats in Congress and also by the Obama Administration, which, ironically, considers itself to be, and in some areas actually is, pro-business. Then there is the notion seemingly shared by many critics of Citizens United (which is also not new, see, e.g., 1 Timothy 6:10) that the profit motive inevitably leads to corruption. Thus, it was suggested that if the Court were inclined to throw out the statute’s limitation on speech, it should do so only for nonprofit corporations; under this view, nonprofits at least could be counted on to be fair, even though the petitioner in the case, which sought to distribute a blatantly one-sided political attack film, was itself a nonprofit. When friends refer to the supposedly built-in immorality of for-profit enterprises as a basis for curbing their political speech, I am reminded of the great economist John Maynard Keynes’ comment about the Roosevelt Administration’s similar attitude towards business: “It is a mistake to think [businessmen] are more immoral than politicians.”
But, perhaps more significantly, many critics of Citizens United seem to be unaware of the Supreme Court’s prior decisions holding that corporate speech is protected by the First Amendment. Some have claimed the decision broke new ground by holding that corporations, too, have First Amendment rights. But this is not so: even Justice Stevens in his eloquent dissent agreed that corporations enjoy First Amendment rights. That corporate speech, like individual speech, is protected flows naturally from the express language of the First Amendment, which does not protect speakers, but speech itself: “Congress shall make no law. . . abridging the freedom of speech. . . .” As the Supreme Court has explained in prior decisions, if the speech at issue is protected under the First Amendment, then the identity of the speaker is irrelevant: that speech may not be limited or controlled absent a compelling state interest outweighing the stern prohibition of the First Amendment.
In short, the dispute between the majority and the dissent in Citizens United was not over whether corporations or unions enjoy First Amendment protection, but rather whether the statute at issue met the admittedly high threshold for limiting their First Amendment rights. And the opposite answers that each gave to that question arose from what Stanley Fish, in his recent, perceptive analysis of Citizens United describes as “an ongoing conflict between two ways of thinking about the First Amendment and its purposes.” (“What is the First Amendment For?,” February 1, 2010). I will discuss what Professor Fish means by these two ways of thinking about the First Amendment and how understanding these different views can help us better understand, and perhaps calm down about, the Citizens United decision in Part II of this essay.