Speech Is Free — If You Can Afford It

It is a peculiarity of history that, in the United States, corporations are considered “persons” to the same degree that flesh-and-blood human beings are considered “persons” under the law. In 1886, the U.S. Supreme Court made an innocuous ruling in an unimportant case, Santa Clara County v. Southern Pacific Railroad. The issue at hand — in a new Constitution, California denied railroad companies the right to deduct mortgages from the taxable value of their property — is fairly unimportant. The court reporter, J.C. Bancroft Davis, wrote a note for the headnote of the opinion: “The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does.” Curiously, none of the justices had ever said this; Davis took it upon himself to include this sentence in the headnote, which later became part of the opinion. From then on, all courts could cite this sentence as approval on the Supreme Court’s part that a corporation is a “person.”

A look at the ruling

This week, we found ourselves faced with Citizens United v. Federal Election Commission, a case that should not have had to deal with corporate personhood, but which, nevertheless, has upheld some truly nefarious practices as being completely legal, in spite of their resoundingly negative public policy implications. Just as the Dredd Scott decision upheld slavery even though there was no finding in law for such a practice, the Supreme Court yesterday upheld corporate personhood even though it has no basis in law. (And, for the record, I am not suggesting that slavery is morally equivalent to corporate personhood. Put your pitchforks away.)

The case begins in January, 2008, when the nonprofit corporation Citizens United released a documentary about then-candidate Hillary Clinton, titledHillary. The Bipartisan Campaign Reform Act of 2002 (hereafter, BCRA) prohibits “electioneering communication” within 30 days of a primary election or 60 days of a general election. BRCA also prohibits corporations and labor unions from using their general treasury funds for “express advocacy,” which is explicitly encouraging voting for or against a named candidate. Express advocacy is determined by the “appeal-to-vote test,” which is described in BCRA.

With every grant of certiorari, the Supreme Court publishes a list of “questions presented” for a case. These questions limit the scope of the discussion. In the case of Citizens United, the Court wished to deal with only four issues:

1. Whether “disclosure requirements” for “electioneering communications” were resolved by the previous challenge to BCRA, McConnell v. FEC;
2. Whether the disclosure requirements impose an “unconstitutional burden” on communications that are not express advocacy (the appeal-to-vote test);
3. Whether the parameters of the appeal-to-vote test are clear enough;
4. Whether the Hillary movie is subject to regulation under BCRA’s “express advocacy” restriction.

If you didn’t notice the words “free speech” and “constitutionality of BCRA,” then you’re not alone. This case was never about the constitutionality of the BCRA per se; it was always about whether or not Hillary was electioneering communication. Period. End. I have always been of the opinion that it was not, since a documentary that casts Hillary Clinton in a negative light is not necessarily an entreaty to vote against her.

In addition to limiting when electioneering communication could take place, BCRA placed limitations on the amount of money that could be donated to political parties. Referred to as soft money, these donations were theoretically limitless before BCRA; the point of the legislation was to protect the political process from undue financial influence. BCRA also prohibited corporations from funding political advertisements, which is why, in the 2004 election, so many single-issue groups popped up, like Swift Boat Veterans for Truth. These “527 groups” (so named for the section of BCRA that allowed them to exist) filled the void left by corporate-sponsored political ads.

Justice Anthony Kennedy and the conservative wing of the Supreme Court disagree with all of this. From the outset, they decided that the case could not be decided without bringing the First Amendment into play. As such, they broadened the scope of the case from the four questions presented above to include the constitutionality of the BCRA’s spending limits.

The ruling comes in sixty-five-dozen parts. Hillary does constitute “express advocacy” under the BCRA and is therefore illegal. However, the free speech implications of BCRA must be looked into; specifically, the corporate expenditure ban. Kennedy, et al. suggest that, while limitations on corporate expenditures do not constitute prior restraint per se, the complexity of the regulations are tantamount to prior restraint (the legal term for censorship). Therefore, § 441b of BCRA — the part limiting corporate expenditures — is unconstitutional because its “prohibition on corporate independent expenditures is an outright ban on speech, backed by criminal sanctions.” This means that the restrictions on campaign expenditures by corporations upheld in 1990’s Austin v. Michigan Chamber of Commerce — for the purpose of preventing unfair corporate influence — is overruled. So much for stare decisis.

Some speech is freer than other speech

Throughout the opinion, Justice Kennedy cited the First Amendment and the need to prevent censorship as the reason for the ruling. The implicit argument is that any regulation of speech amounts to prohibition of speech. Corporations were not permitted to use general treasury funds to finance candidates or messages. They were, however, permitted to form their own political action committees (PACs). This is exactly how nonprofit corporations are currently required to work: in exchange for tax-exempt status, nonprofits (which include churches) cannot use their general treasury funds to lobby for candidates or legislation. But they can form affiliated lobbying organizations, so long as the money for the political organization does not come from the tax-exempt organization. (For example, the ACLU is not tax-exempt because it lobbies for candidates and legislation; however, the ACLU has an affiliate organization called The ACLU Foundation that is tax-exempt.)

Whither nonprofits? If for-profit corporations cannot be limited in the amounts of their expenditures, why should nonprofits be so limited? Whyshouldn’t churches be able to implore their congregations to vote for this candidate or that candidate? Under Citizens United, such a restriction amounts to censorship.

The majority opinion also ignores the “reasonable restrictions” that have always been placed on speech. These restrictions limit the “time, place, and manner” of speech because, to use the textbook example, yelling “Fire!” in a crowded theater could lead to people’s deaths. Religious organizations cannot proselytize in airports because — guess what? — airports are not a “public forum.” (Interesting fact: due to the language of the California Constitution, California is the only state in which a public shopping mall is a “public forum.”) You can shout all you want on a street corner, but your ability to use a megaphone can be restricted by law due to the nuisance a megaphone causes. Corporations themselves are even restricted in advertising; “commercial speech” must be true, so that a company cannot make outrageous claims about its product or use advertising to slander other products. All of these “reasonable restrictions” are in place to balance the free speech needs of a speaker with the needs of government to protect the rights of others.

Using the Constitution to rule on issues of corporate personhood is stupid on its face; the Constitution does not deal with the issue, and neither did the authors of the Constitution anticipate that corporations would need to be governed in such a way. Using the trope of a “person” to describe a corporation is advantageous in that it bestows upon the corporate entity the ability to file lawsuits. But the Constitution is ill-equipped for the job of deciding whether or not a corporation is a person. This is where, contrary to Chief Justice Roberts’ statement that justices are like umpires, the Supreme Court needs to make up the law. In the absence of guidance from the Constitution or from Congress, the Court becomes an instrument of public policy, and it can use that power for good or for ill. Specifically, the Court can decide to do what is best for the nation. In this case, it has not. Speech is not protected by allowing corporations — who, again, can neither vote nor hold public office — to influence elections. We do not allow non-citizens to vote, but nor do we allow them to donate money to campaigns (with the exception of permanent residents, which is a poor idea that should be changed) or hold public office.

The majority would like this case to turn on the issue of free speech, but more basic than that, it should turn on the issue of whether or not corporations areentitled to that freedom. I submit that they are not. The ball is now in Congress’ court to craft a statute that limits the rights of corporations and affirms, once and for all, that they are not “persons” the same way that flesh-and-blood humans are “persons.” Thomas Jefferson, et al. believed that humans were entitled to fundamental rights by virtue of their status as reasoning beings. Corporations cannot reason; they have no mind of their own. They are no functionally better than sock puppets, and the last time I checked, Kermit the Frog was not allowed to donate money to a political campaign.

Corporations’ rights must be limited and enumerated. While it is convenient for them to have some of the rights of human beings, it is not necessary — nor is it good for the public at large — for them to have all of the rights of human beings.