The following article was originally published by The Libertarian Institute in January 2021
Today marks the 13th anniversary of the Supreme Court’s decision in the landmark case Citizens United v. FEC, 558 U.S. 310 (2010)
Even after 13 years many Americans (and in fact, possibly most Americans) consider the majority opinion to be a truly repugnant miscarriage of justice and passionately fight to see this case overturned.
The problem with those who affect to despise this case is that their interpretation bears little resemblance to the merits of the case and bears even less resemblance to the opinion of the Court in Citizens United -
This inability to articulate a clear understanding of the case is so encompassing it strongly suggests they have never actually read the opinion and are merely parroting what they have heard others say.
To this case’s detractors Citizens United signifies the first time the Supreme Court held that “corporations are people” and that “money is speech”. they sensationalize the supposed meaning of this case with hyperbolic articles with headlines such as: “Corporations Are People, and They Have More Rights than You.”
Such articles make ridiculous claims such as identifying Citizens United as being ultimately responsible for giving businesses like Hobby Lobby the power to trample all over women’s rights with their corporate rights by refusing to pay for birth control. The only problem is that is entirely untrue.
Corporate personhood is a legal doctrine that existed in English common law for hundreds of years and whose antecedents can even be traced back to the civil law system of the Roman Republic. That corporations have a legal protection of some rights was not even up for debate in the case, as we will get to later. But even the four dissenting liberal justices in the case took judicial notice of the doctrine of corporate personhood.
On a side note - what no one ever seems to know about Hobby Lobby is that they in fact didn’t contest paying for most forms of birth control. Just one. They didn’t want to pay for Plan B, the so-called “morning after pill” because they said as Christians they believe that life begins at conception and that makes Plan B akin to an abortion.
I don’t share their view, but it doesn’t seem like an unreasonable legal construction based on the First Amendment’s free exercise clause. They never objected to covering forms of birth control such as “The Pill” or any other that prevents pregnancy… But I digress…
One Citizen’s United myth, that lacks any grounding in reality is a claim that is best made by Annie Leonard in her “Story of Stuff” video called “The Story of Citizens United v. FEC”
Here the claim is that a failure to overturn Citizens United and to empower Congress with greater oversight about ‘the corrupting influence of dark money’ constitutes an existential threat to the continued existence of democracy itself… Never mind the absurdity of arguing we need congressional oversight of Congress so members of Congress can prevent themselves from being bribed… You would be hard pressed to find a better example than the claims made by Citizens United detractors about the problems they see with this case they have never read and the solutions they offer that defy logic itself that successfully encapsulates H.L. Mencken’s definition of democracy:
In fact, both sources make the case that the destructive and harmful nature of this case is only comparable with Dred Scott v. Sandford, 60 U.S. 393 (1856)
Apparently United States v. Cruikshank, 92 U.S. 542 (1875), Plessy v. Ferguson, 163 U.S. 537 (1896), Buck v. Bell, 274 U.S. 200 (1927) and Korematsu v. United States, 323 U.S. 214 (1944) are somehow less harmful than a case that said People don’t lose their rights when they form into groups.
Or, to be more specific, In Citizens United, the Court held the First Amendment extends protection to associations of individuals, not just individual speakers. Additionally, the First Amendment disallows prohibitions of speech based on the identity of the speaker. Therefore, corporations as associations of individuals have freedom of speech rights.
However for brevity’s sake it is suffice to say the central message was “People don’t forfeit their rights when they form into groups”…
So, if this case does not say “corporations are people” and “Money equals speech” what does it say?
Well, the organization Citizens United challenged a Federal Elections Commission violation they were hit with. what FEC regulation did they violate? Did they bribe a politician? Did they give donations without disclosing them? Were they spending money that originally came from foreign governments? No, Citizens United got in trouble for showing a movie. That's right, Hillary The movie was a 2008 political documentary produced by the nonprofit organization. The movie was offered as an on demand video on cable before the 2008 Democratic primaries and therefore it was considered electioneering. And the money that was spent on the film qualified as an independent expenditure. According to the Bipartisan Campaign Reform Act, or McCain Feingold, a corporation, including a nonprofit corporation cannot advocate for or against a candidate running for office 30 days prior to a primary election, or 60 days prior to a general election. So under this law, a group of people needed the government's permission regarding whether or not they could show a film critical of Hillary Clinton. That's the law that the Citizens United case nullified and Citizens United is the case seemingly everyone on the left seeks to overturn.
Many of you likely didn't know those details. Most people don't. It's one of the most misunderstood events in all of American politics. Most people think that this Court decision established that money is speech and the corporations are people amazingly enough, those two specific phrases that everyone associates with the case never actually appeared in either the majority opinion or the dissent. Second of all, neither the concept of corporate personhood nor the connection between money and speech were ever disputed by either party to the case.
Most commentators, though not all, grounded their opposition to the Supreme Court's ruling in those two rather absolute principles.
Corporations are not persons and therefore have no First Amendment & free speech rights and
Money is not speech and therefore restrictions on how money is spent cannot violate the First Amendment free speech clause.
What makes those arguments so bizarre is that none of the nine justices, including the four dissenting justices, argue either of those propositions… or even believe them. To the contrary, all nine justices, including the four in the dissent, agree that corporations do have first amendment rights and that restricting how money can be spent in pursuit of political advocacy does trigger First Amendment protections as Justice Stevens who wrote the dissent says
Of course, speech does not fall entirely outside of the protection of the First Amendment merely because it comes from a corporation and no one suggests the contrary.
Justice Stevens also wrote
…That even though the expenditures at issue were subject to First Amendment scrutiny, these restrictions on these expenditures were justified by compelling state interest…
In other words, Stevens believes that spending money on speech is covered under the First Amendment. Congress just has an interest in regulating it in some situations. Remember, as a matter of law, a corporation is just a group of people. Yes, it includes large multinational for-profit corporations like Walmart and Exxon Mobil. But it also includes labor unions, nonprofit corporations like the ACLU, (which endorsed the Citizens United decision, by the way) and the Libertarian Institute itself is a 501(c)(3) that benefits from the first amendment protections of this case- as well as small, limited liability corporations.
Granting these entities constitutional rights is simply predicated on the idea that individuals don't sacrifice any of their civil liberties when they form into groups. So, to pose a simple question to all those who are against Citizens United and wish to see it overturned - and anyone who claims that since corporations are not persons, they have no rights under the Constitution. Do you believe the FBI has the right to enter and search the offices of the ACLU without probable cause or warrants and seize whatever they want? Do they have the right to do that to the offices of labor unions? How about your local business on the corner which is incorporated? The only thing stopping them from doing that is the Fourth Amendment if you believe that corporations have no constitutional rights, because they're not persons, what possible objection could you voice to congress empowering the FBI to do these things? Can they seize the property, the buildings, the cars and bank accounts of those entities without due process or just compensation? If you believe that corporations have no constitutional rights, what possible constitutional objection could you have to such laws and actions?
Now to the point of money and speech. This is just the idea that engaging in speech in any meaningful way (anything more sophisticated than standing on the street corner and yelling) costs money, therefore regulations on the money somebody can spend on speaking is regulating speech by proxy. Think about it, printing a newspaper cost money, hosting an online news show costs money, placing a television ad costs money and so forth.
Regulating the amount of money someone can spend, where they can get that money, when they can spend it, where they can spend it undoubtedly jeopardizes the speech itself. All nine Justices of the Supreme Court at the time agreed. This actually goes back to the 1976 Supreme Court case and Buckley v. Valeo.
Here, the majority ruled that limits on expenditures are necessarily at odds with the First Amendment because restrictions on spending for political communication necessarily reduces the quantity of that expression. The funny thing is, the Citizens United critics acknowledge this, So for Bernie Sanders or Democratic Socialists or Justice Democrats this is actually part of the point of their campaign finance efforts. As they will tell you:
And when money is speech that means that the more money you have, the more speech you have. And if corporations are people, people who have a lot more money than you and I that means that corporations have a lot more speech than the rest of us.
They think that it's unfair that some candidates can purchase more advertisements and others and that needs to be corrected in Citizens United. The dissenting justices never said that money isn't speech. What they did argue is that Congress had a compelling state interest in regulating it on the grounds of preventing corruption. So does this money in the system cause corruption? Well, that's not really relevant to the question at hand.
While critics emphasized the court's ruling will produce and exacerbate very bad outcomes. The problem of corporate influence in our Republic., even if it were true its not really relevant. Either the First Amendment allows these speech restrictions or it doesn't. In general, a law that violates the Constitution can't be upheld, because the law produces good outcomes, or because its invalidation would produce bad outcomes. Many think that America is too far gone in terms of corporate control of politics.
I think it's a very overrated problem. But it is a problem. And our current campaign finance regime contributes to that problem. But that's not relevant to the speech question. We also have racism in this country. And that's a problem too, allowing the KKK to hold one of their stupid rallies contributes to that problem. That doesn't mean they don't have the right to hold it invoking the state interest isn't really persuasive either. Virtually anything can be justified by that rationale. And that argument has been used to curtail civil liberties and other contexts. So when people talk about limiting independent expenditures, they're actually talking about limiting your ability to engage in political advocacy.
Citizens United simply doesn’t stand for what many people say it does. Their erroneous lamentations are well characterized by President Obama’s famous statement during his 2010 State of the Union Address:
The Supreme Court reversed a century of law that I believe will open the floodgates of special interests — including foreign corporations — to spend without limit in our elections.
In that one sentence, the former law professor made four errors that are all too common.
Even after 13 years, critics of Supreme Court decision just can’t get it right.
First, Citizens United didn’t reverse a century of law. The president was referring to the Tillman Act of 1907, which banned corporate donations to campaigns. Such donations are still banned. Instead, the decision overturned a 1990 precedent that upheld a ban on independent spending by corporations. That 1990 ruling, Austin v. Michigan Chamber of Commerce, which was the only time the court allowed a restriction on political speech for a reason other than the need to prevent corruption.
Second, the “floodgates” point depends on how you define those terms. In modern times, nearly every election cycle has seen an increase in political spending, but there’s no indication that there’s a significant change in corporate spending. And the rules affecting independent spending by wealthy individuals, who are spending more, haven’t changed at all.
Indeed, much of the corporate influence peddling in Washington that has reformers concerned has nothing to with campaign spending. Most corporations spend far more on lobbying lawmakers already in Washington than they do in political spending to choose which politicians come to Washington.
Third, Citizens United said nothing about restrictions on foreign spending in our political campaigns. In 2012, the Supreme Court summarily upheld just such restrictions.
Fourth, while independent spending on elections now has few limits, candidates and parties aren’t so lucky. Even last year’s decision in McCutcheon v. FEC, which struck down aggregate — not per‐ candidate — contribution limits, only affected the relatively few bigwigs (about 600 in the 2012 cycle) who had hit the $123,200 cap. The amount that an individual can give to a single campaign remains untouched.
And so, if you’re concerned about the money spent on elections — though Americans spend more on Halloween — the problem isn’t with big corporate players. Exxon, Halliburton and all these “evil” companies (or even “good” ones) aren’t suddenly dominating the conversation. They spend little on political ads because they don’t want to alienate half of their customers.
On the other hand, smaller players now get to speak freely: groups such as the National Federation of Independent Business, Sierra Club, the American Civil Liberties Union and the National Rifle Association. Even if we accept “leveling the playing field” as a proper basis for regulation, the freeing of associational speech achieves that goal.
People don’t lose rights when they get together, be it in unions, advocacy groups, private clubs, for‐ profit enterprises or any other way.
By removing limits on independent political speech — spending by people unconnected to candidates and parties — Citizens United weakened the government’s control of who can speak, how much and on what subject. That’s a good thing.
On this anniversary I want to invite everyone to join me in sharing this article across social media…. Who knows? perhaps some Bernie Bro will read this and do the research to independently verify whether this interpretation is correct, or the conflicting interpretation of some politician who hasn’t read the case - Like Bernie Sanders, AOC, or Elizabeth Warren.
To learn more about Citizens United & related topics check out:
12 Years After Citizens United, the Supreme Court's Right-Wing Revolution Continues
Thomas Massie Interview on the REAL money in politics problem
Getting Big Money Out of Politics and Restoring Democracy, Friends of Bernie Sanders
Does Money Equal Speech? Episode
People Are Corporations Episode
Tags: first amendment, free speech, free association, citizens united, FEC, supreme court, case, ACLU, Hillary, democracy, corporations, people, money, speech, constitution, bill of rights, bernie sanders, the young turks, justice democrats, democratic socialists