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Corporations are citizens?

The Supreme Court's 2010 decision to allow corporations First Amendment rights.

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Not as bad as folks think, but could be better

  • Dec 14, 2010
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I actually read the Supreme Court's opinions here (the opinion of the court, the concurrences, and the partial dissents).  I also read most of the Amicus briefs.  There is a lot of misinformation about this case.

Citizens United v. FEC addressed the question of independent corporate speech in the context of elections.  At issue was a portion of the Bipartisan Campaign Finance Reform Act which banned "electioneering communications" by any corporation other than the press.  In other words, Fox News and the New York Times were allowed to run editorials to communicate what they, as corporations, thought about candidates, but Oracle would  be barred from doing so.

Prior to this case, a company would be banned from putting up pages on their web sites discussing what they thought about candidates, buying advertisements on television, and so forth.

At issue were fundamentally the rights of people to come together in a corporate form to communicate with the public.  This is because Citizens United was a corporation which existed as a political advocacy group, and was trying to show a commentary movie about Hillary Clinton in advance of the primary election.  Citizens United was funded mostly by individuals.  Lining up to defend Citizens United was a diverse group of folks ranging from the ACLU (which advocated the exact steps the court took here) and the Sierra Club to the NRA (which advocated striking only an amendment to the law).

The Supreme Court held that the ban on independent communications of an electioneering nature were impermissible infringements on the freedoms of speech and association, but that speech in coordination with a candidate could still be banned.  Moreover they held, 8-1 that the disclosure requirements were Constitutional.

While the decision was generally billed as a 5-4 decision, the 5-4 split regarded whether to make a ruling at all.  The dissent suggested primarily that the record had not been sufficiently developed to evaluate such a claim, and that it should be held to be moot or sent back to a trial court for more proceedings. 

This is a victory for everyone.

First it holds that the identity of the speaker does not concern the first amendment, and that there is no Constitutional difference between a corporation which publishes a newspaper or has a television show (think General Electric, News Corp, or the New York Times) and a corporation which doesn't.  Since there is no special Constitutional freedom of the press in this instance, then, the rights that the newspapers retained under this legislation occur only by legislative grace, and that to permit this is an affront to the First Amendment.

In essence what the court held was that this portion of federal election law in essence was a form of prior restraint that was difficult to justify Constitutionally.  It did not hold that there were no differences between a natural person and a corporation, just that prior restraint of ANYBODY was Unconstitutional.  The court then returned to the older case law in Buckley v. Valeo which looked at corruption interests as compelling, and therefore allowed bans on coordinated communications between corporations and candidates.

Moreover this avoids contributing to a huge mess that was campaign finance law at the time.  At that tie you also had two lines of cases, one (McConnel v. FEC and similar) which held that these laws were broadly Constitutional, and another (Wisconsin Right to Life, Massachusetts Committee For Life, and similar) which held that issue advocacy could not be banned.  (WRtL and MCFL were decisions which were widely celebrated by groups from the official plaintiffs to, for example Planned Parenthood.)

What does this mean?  It means that a corporation has the right to buy advertising in order to communicate to the public what the corporate leadership believe about the candidate, no more and no less.  It also means that laws cannot discriminate in favor of news organizations at the expense of others.

This leads to a number of other questions.  For example, a similar law prevents independent expenditures by aliens who are not lawful permanent residents.  Is this Constitutional?  Can US law really ban a Somali refugee from putting up a web site advocating voting for or against various candidates?  There's currently a lawsuit ongoing which is challenging exactly this regulation.

Now, restrictions could still be permissible if they pass strict scrutiny.  Perhaps of Congress wanted to reserve a venue for natural persons and political parties, they could still do so.  I don't see that banning such advertisements on over-the-air TV would be a major problem if Congress could find that this medium was uniquely scarce and important, despite dicta in this opinion to the contrary.

Where the decision could be better is in the dicta area.  The existing decision included dicta more or less rejecting the whole scarcity argument.  In my opinion, courts should refrain from discussing too much in their opinions and this is a case where they did.  I personally think that targetting uniquely important and valuable venues would pass strict scrutiny at least in the minds of many justices, and given that this is a close decision, all one has to do is peel off one justice.

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review by . February 01, 2010
The Supreme Court's recent decision to permit corporations a voice in elections makes a mockery of the First Amendment, the Constitution and the intentions of the Founding Fathers. The whole point of "We The People" was always to bring the power back to the individual, away from the monarchy and ruling classes, and this ruling flies in the face of not just common sense but the very fundamentals of this country.      I can imagine that this was argued as if somehow corporations …
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Chris Travers ()
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