Limits of Corporate Constitutional Rights

The central legal question at issue in Citizens United v. the Federal Election Commission is whether or not a feature-length film critical of Senator Hillary Clinton intended to be shown in theaters and on-demand to cable subscribers is “political speech” subject to federal campaign finance laws. After hearing initial arguments, the Supreme Court of the United States ordered re-argument, expanding the scope of the case to focus on the constitutionality of limiting corporations’ independent spending during campaigns for the Presidency and Congress.

In a Red/Blue column in August we explored bipartisanship, and in a portion of that column I wrote about the role of money in politics. This is in many ways an extension of that. In the case of federal campaign finance laws, both Congress and the Court have interpreted financial expenditure as the equivalent of “political speech” in need of regulation.

From my perspective, however, the larger central questions of this case are these: Are corporations (for our purposes here defined as for profits, non-profits, advocacy groups, associations and unions) “persons” as defined in the Constitution of the United States? Are these corporate persons entitled to the same rights as corporal persons, including the First Amendment right of unfettered free speech?

To the first question, my answer is no. It has long been established legal doctrine that corporations are “persons” in the eyes of the law. However, unlike a real person, they are entities established by the state, and therefore subject to regulations that the state may impose. Real persons, as I have consistently argued in this series of Red and Blue articles, are endowed with all sovereign rights by virtue of the fact that they are living, breathing, human beings, and that we as humans living in community loan some of our rights to form government.

To the second question, my answer also is no. Though persons in the legal sense, entities of the state cannot have the same Constitutional rights as real persons because their rights are not inherent in their being but have been granted by the state on behalf of sovereign citizens.

Thus we are left with the legal question of what rights these corporations should have under the law to engage in “political speech” as defined by statute and regulation.

Corporations (for profits, non-profits, associations, unions, etc.) all have rights and they all have interests to promote and to protect. Congress and the Court first began to set limits on corporate speech early in the last century and have been working to refine where the line is since that time.

Generally, I am not one who thinks that the courts are the place where all arguments should be settled; the legislative branch, as representatives of the citizenry, is the place where most issues should be settled. However, in this case I think the Court needs to define the limits.

The Court must here engage in a balancing act between real persons, corporate entities and the political process. From one side, a real danger is that Congress will enact legislation that is too self-serving and so restrictive that they essentially protect themselves from any dissent or opposition that is critical of the incumbent. On another side is that if given too free of a rein, corporations, unions, advocacy groups, associations and the like, will flood the airwaves with ads that alternatively praise or vilify our elected representatives and those running to unseat them. The citizen is then left to make heads and tales of these competing claims, which isn’t bad and in fact is beneficial to the political process, but one can imagine how all this could easily get out of control and become so poisonous to the political process that the number of people actually voting would be suppressed even more that it is currently. It would also likely increase the amount of money in politics – production of political ads and air time is expensive; and it is more difficult for challengers to raise money.

In my view, it is likely that even if there is a sweeping away of restrictions and corporations as defined here are given more latitude to engage in the election process, that large corporations will decide not to and that issue advocacy groups and unions will engage.

My expectation is that large corporations and associations will keep using the levers they presently use to manipulate the political process: lobbying – a far more insidious process that allows them to remain in the shadows and to not expose their preferences on the airwaves for all to see. It would likely be far easier and safer to work with their office-holding allies to add pork to funding bills and favorable tax treatment to the tax code.

So, where will the Court come down? It seems from the analysis I’ve read that there are three solid votes on each side, with three up for grabs – including newly-minted Justice Sonya Sotomayor. The Court is expected to issue its decision in the spring.

For those interested in a fuller explanation and analysis of this case, along with the briefs of the two parties involved and the amicus briefs of other organizations with interests in this case, please visit: http://www.scotuswiki.com/index.php?title=Citizens_United_v._Federal_Election_Commission.

(Snarky comment alert: Interestingly, I noted that The Reporters Committee for Freedom of the Press sided with Citizens United in its amicus brief. Is this to assure that the media’s one-sided coverage of the last presidential election is not considered advocacy that needs to be restricted?)