Follow-up on the Citizens United case

None of the 9 Justices believes that corporations lack free speech rights

Topics: Campaign Finance, Washington, D.C.,

(updated below – Update II – Update III)

As one would expect, a substantial number of commenters yesterday disagreed with the Supreme’s Court ruling in the Citizens United case case and with my partial defense of it.  I say that’s to be expected because, in our political discourse, it’s virtually always the case that opinions about court rulings perfectly coincide with opinions about the policy whose constitutionality is being adjudicated (e.g., those who favor same-sex marriage on policy grounds cheer court rulings that such marriages are constitutionally compelled, while those who oppose them on policy grounds object to those court rulings, etc. etc.).  When a court invalidates Law X or Government Action Y on constitutional grounds, it’s always so striking how one’s views about the validity of the court’s ruling track one’s beliefs about the desirability of Law X/Action Y on policy grounds (e.g., “I like Law X and disagree with the Court’s ruling declaring Law X unconstitutional” or “I dislike Law X and agree with the Court’s striking down Law X”).  Campaign finance laws are popular with readers here, and thus a court decision striking down those laws inevitably will be unpopular (though the public at large — including 2/3 of Democrats — overwhelmingly agrees with the Court’s ruling).  It’s critical always to note that these are two entirely distinct questions:  (1) is Law X/Government Action Y a good thing?, and (2) is Law X/Government Action Y Constitutional?  If you find yourself virtually always providing the same answer to both questions — or, conversely, almost never providing opposite answers — that’s a very compelling sign that your opinions about court rulings are outcome-based (i.e., driven by your policy preferences) rather than based in law or the Constitution.

More important, I want to note one extremely bizarre aspect to the discussion yesterday.  Most commenters (though not all) grounded their opposition to the Supreme Court’s ruling in two rather absolute principles:  (1) corporations are not ”persons” and thus have no First Amendment/free speech rights and/or (2) money is not speech, and therefore restrictions on how money is spent cannot violate the First Amendment’s free speech clause.  What makes those arguments so bizarre is that none of the 9 Justices — including the 4 dissenting Justices — argued either of those propositions or believe them.   To the contrary, all 9 Justices — including the 4 in dissent — agreed 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.  Here’s what Justice Stevens himself said in his dissent (p. 54-55): 

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Let’s repeat that.  As Justice Stevens says:  “of course . . . speech does not fall entirely outside the protection of the First Amendment merely because it comes from a corporation,” and ”no one suggests the contrary.”  The fact that all nine Justices reject a certain proposition does not, of course, prove that it’s wrong.  But those who argue that (1) corporations have no First Amendment rights and/or (2) restrictions on money cannot violate the free speech clause should stop pretending that the 4 dissenting Justices agreed with you.  They didn’t.  None of the 9 Justices made those arguments.

To the contrary, the entire dissent — while arguing that corporations have fewer First Amendment protections than individuals — is grounded in the premise that corporations do have First Amendment free speech rights and that restrictions on the expenditure of money do burden those rights, but those free speech rights can be restricted when there’s a “compelling state interest.”  In this case, the dissenters argued, such restrictions are justified by the “compelling state interest” the Government has in preventing the corrupting influence of corporate money.  That’s why the extent of one’s belief in the First Amendment is outcome-determinative here.  Those who want to restrict free speech always argue that there’s a compelling reason to do so (“we must ban the Communist Party because they pose a danger to the country”; “we must ban hate speech because it sparks violence and causes a climate of intimidation”; “we must ban radical Muslim websites because they provoke Terrorism”).  One can have reasonable debates over the “compelling interest” question as a constitutional matter — and, as I said yesterday, I’m deeply ambivalent about the Citizens United case because that’s a hard question and I do think corporate influence is one of the greatest threats we face — but, ultimately, it’s because I don’t believe that restrictions on political speech and opinions (as opposed to other kinds of statements) can ever be justified that I agree with the majority’s ruling. There are reasonable arguments on all sides of that question.

But what isn’t reasonable is to pretend that the 4 dissenting judges endorsed the idea that corporations have no First Amendment rights or that money restrictions don’t burden free speech rights.  All 9 justices rejected those views.  Again, that doesn’t mean those views are wrong, but it does mean that those who are arguing these two principles do not find any support even from the dissenters.

* * * * *

Here’s Law Professor Jonathan Turley on Countdown explaining why, although this is a very hard case, there are real dangers from allowing the Government to restrict political speech, which is why — even though this decision will unquestionably produce bad outcomes — the First Amendment simply does not allow restrictions of this sort:

Turley was, of course, one of the most vocal opponents of the Bush assault on civil liberties, and that underscores an irony here.  Later today (or tomorrow), I’ll post a podcast interview I did with ACLU Executive Director Anthony Romero, where he explains how these laws burden the ability of advocacy groups like the ACLU to have their views heard and why they find these laws so constitutionally troubling.

One of the principal accusations made over the last eight years from Bush followers — directed at those like Turley and the ACLU who objected to Bush terrorism policies on legal and Constitutional grounds — is that they were caught up in “legalisms,” absolutism and dogmatic purity at the expense of addressing a “real-world” crisis:  the threat of Terrorism.  “People are trying to KILL US and you’re worried about due process.”  Those same name-calling accusations were made frequently by commenters last night about those who think the First Amendment actually means what it says and can’t be violated in the name of good results (“your absolutism and legalistic purity ignores the real-world problem of corporate influence”).  The “rule of law,” however, means that if the Constitution or other laws bar X, then X is not allowed regardless of how many good outcomes can be achieved by X.  That was true for the “crisis” of Terrorism, and it’s just as true for the crisis of corporate influence over our political process.  Whatever solutions are to be found for either problem, they cannot be ones that the Constitution explicitly prohibits.  That’s what “the rule of law” means.

 

UPDATE:  Politico‘s Jeanne Cummings spoke with several election-law experts, who explain why the impact of this ruling will likely be far less than much of the histrionic commentary suggests.  I’m not adopting all of the points they make — and, for reasons I explained yesterday, the impact of the decision does very little to alter the First Amendment issues, at least as I see them — but it’s certainly worth reading what these experts have to say, in particular their explanations of why and how this decision will do little more than move money around that is already flooding the political process.

 

UPDATE II:  For those claiming that corporations have no rights under the Constitution because those rights are reserved only for “persons,” I’d be very interested in hearing your answers to these questions.

 

UPDATE III:  Over at Mother Jones, Kevin Drum has a good, nuanced discussion of this case and of some of the arguments I’ve made about it.  I don’t agree with all of what Kevin says, but it’s well worth reading.

Glenn Greenwald

Follow Glenn Greenwald on Twitter: @ggreenwald.

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