# Citizens United v. FEC

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## Should companies enjoy freedom of speech, my friend?

We now know the history of and rationale behind corporate personhood, a concept that goes back 200 years. We've also come to think of personhood as a kind of contract between parties; while in everday speech we use "person" and "human" interchangeably, we've pointed to cases where humans are not considered persons, and were non-humans are considered persons.

We've finally equipped ourselves with the knowledge we need to start discussing some of the meaty cases that have come before the Supreme Court in the last few years.

We'll start with Citizens United v. FEC, a landmark case decided by the Supreme Court in 2010.

The background of the case is interesting — it began in 2002 when the conservative nonprofit Citizens United tried to block the release of Fahrenheit 9/11, on the grounds that the film was essentially political advertising against George Bush. Corporate spending on politics had previously been limited by the Bipartisan Campaign Reform Act of 2002. Citizens United lost the case, on the grounds that the production of the film was "bona fide commercial activity."

So Citizens United decided to take a different approach. After the ruling against them, they sought to become a "bona fide commercial filmmaker," and in 2008 ran commercials for *Hillary: The Movie*, a documentary critical of presidential candidate Hillary Clinton. Citizens United then challenged the FEC to make a ruling on their film, which was a more clear-cut case of electioneering than Fahrenheit 9/11 had been.

In its oral arguments to the Supreme Court, the FEC argued that the Bipartisan Campaign Reform Act gave Congress expansive power. From the New York Times:

> Several of the court’s more conservative justices reacted with incredulity to a series of answers from a government lawyer about the scope of Congressional authority to limit political speech. The lawyer, Malcolm L. Stewart, said Congress has the power to ban political books, signs and Internet videos, if they are paid for by corporations and distributed not long before an election.

Conservative Justice Samuel Alito pressed Stewart futher. The Times continues:

> Justice Samuel A. Alito Jr. asked, for instance, whether a campaign biography in book form could be banned. Mr. Stewart said yes, so long as it was paid for with a corporation’s general treasury money, as opposed to its political action committee.
>
> “That’s pretty incredible,” Justice Alito said.

What started out as a narrow case — can Citizens United show this movie? — turned, thanks to the FEC's bold claim, into an extremely broad one. Should the government be able to ban any political speech funded by a corporation?

Ultimately, the Supreme Court's answer was no. In a 5-4 decision, the court overturned the Bipartisan Campaign Reform Act and declared that unlimited election spending by individuals and corporations was protected under the First Amendment.

Justice Kennedy, writing the majority opinion, said:

> The Government may regulate corporate political speech through disclaimer and disclosure requirements, but it may not suppress that speech altogether.

I want to spend more time looking at the minority opinion, laid out by Justice Stevens in a 90-page dissent.

The Court's decision established the following points:

1. People have freedom of speech
2. Political spending is speech
3. Any limitation on spending is an infringement on the freedom of speech
4. Corporations are people

Justice Stevens wrote the 90-page dissent. Primary among his concerns was that "corporate wealth can unfairly influence elections," an opinion put forward in Austin v. Michigan Chamber of Commerce (which Citizens United overturned).

Additionally, Stevens went on to argue that it was not the place of a corporation to wade into political waters:

The legal structure of corporations allows them to amass and deploy financial resources on a scale few natural persons can match. The structure of a business corporation, furthermore, draws a line between the corporation’s economic interests and the political preferences of the individuals associated with the corporation; the corporation must engage the electoral process with the aim “to enhance the profitability of the company, no matter how persuasive the arguments for a broader or conflicting set of priorities,” Brief for American Independent Business Alliance as Amicus Curiae 11; see also ALI, Principles of Corporate Governance: Analysis and Recommendations §2.01(a), p. 55 (1992) (“\[A] corporation … should have as its objective the conduct of business activities with a view to enhancing corporate profit and shareholder gain”).

Finally, Stevens made the case that unlimited spending could drown out other voices, and there was precedent for guarding against that sort of thing:

\[T]he Constitution does, in fact, permit numerous “restrictions on the speech of some in order to prevent a few from drowning out the many”: for example, restrictions on ballot access and on legislators’ floor time.

Also:

Because shareholders invest money in corporations, Stevens argued that the law should likewise help to protect shareholders from funding speech that they oppose:

When corporations use general treasury funds to praise or attack a particular candidate for office, it is the shareholders, as the residual claimants, who are effectively footing the bill. Those shareholders who disagree with the corporation’s electoral message may find their financial investments being used to undermine their political convictions.

It might also be added that corporations have no consciences, no beliefs, no feelings, no thoughts, no desires. Corporations help structure and facilitate the activities of human beings, to be sure, and their “personhood” often serves as a useful legal fiction. But they are not themselves members of “We the People” by whom and for whom our Constitution was established.

Counterpoints:

* closely-held (ie., private) corporations actually consitute +90% of businesses in the United States
* "few persons can match." So, a non-zero number of natural persons have the resources of corporations. Wouldn't limiting the power of corporations give these natural persons even more influence?
* corporations aren't actually on the hook to make corporate profit and shareholder gain their objective.

\-- Remember! Citizens United is a nonprofit. People will weasel their way around.

<http://www.nytimes.com/2015/06/10/business/corporations-open-up-about-political-spending.html>

<http://www.nytimes.com/2009/03/25/washington/25scotus.html?_r=0>

Third, Stevens argued that the majority's decision failed to recognize the dangers of the corporate form. Austin held that the prevention of corruption, including the distorting influence of a dominant funding source, was a sufficient reason for regulating corporate independent expenditures. In defending Austin, Stevens argued that the unique qualities of corporations and other artificial legal entities made them dangerous to democratic elections. These legal entities, he argued, have perpetual life, the ability to amass large sums of money, limited liability, no ability to vote, no morality, no purpose outside profit-making, and no loyalty. Therefore, he argued, the courts should permit legislatures to regulate corporate participation in the political process.
