Buying
Justice:
The
Impact of Citizens
United on Personhood
‘Citizens United’ vs. the Federal Election
Commission was widely considered to have been one of the most
controversial Supreme Court decisions regarding campaign finance and corporate
personhood. In an attempt to lobby against Hillary Clinton in 2008, Citizens
United sought an injunction against the Federal Election Commission (FEC) to
prevent the legislation of the Bipartisan Campaign Reform Act (BCRA) from
releasing a film that negatively impacted Clinton. “Hillary: The Movie” was
being sold on DVD copies and eventually was free to download on-demand in an
attempt to devastate her campaign. Citizens United argued that Section 203 of
the BCRA violated their First Amendment rights when applied to the “Hillary”
movie. The Supreme Courts majority held that the BCRA's disclosure requirements
on political advertising sponsors, as applied to The Movie, were Constitutional,
reasoning that disclosure is justified by a "governmental interest"
in providing the electorate with information about a candidate. The Court also
upheld ban on direct contributions to candidates from corporations and unions –
ultimately creating Super PACs. As a result of negative backlash from the
decision of Citizens United, the
topic of personhood has been summoned for debate – to scrutinize and evaluate
the decisions of our Justices, questioning whether their adjudicating decisions
in landmark cases like Citizens United
hold with previously set precedent.
The
issue regarding Citizens United v. FEC begins with the Presidential
elections of 2008. There were two parties involved in the case; Starting with
the conservative non-profit organization, Citizens United – who were the
lobbyists in favor of the Right Wing and their race for Presidency. The other
was the Federal Election Committee – an independent regulatory agency for the
United States Congress to regulate campaign finance legislation, created in a
provision of the 1975 amendment to the Federal Election Campaign Act (FECA). When
Hillary Clinton announced her run for POTUS, Citizens United made “Hillary: The
Movie,” a 90-minute documentary that criticized the expertise, professionalism
and qualifications of Clinton. Eventually, Citizens United sought an injunction
from allegations by the Federal Election Committee for violating the BCRA.
Under code §203 of the BCRA, “federal
law prohibits corporations and unions from spending their general treasury
funds on ‘electioneering communications’ or for speech that expressly advocates the election or defeat of a
candidate”.
An ‘electioneering communication’ as explained under §441b, states “any
broadcast, cable, or satellite communication that (1) refers to a clearly
identified candidate for federal office, (2) is made within 30 days of a
primary election or 60 days of a general election, and (3) is publicly
distributed.”
Although Citizens United had violated the BCRA, they plead that the
regulations from the amendment were considered unconstitutional – constraining
large corporations and their expenditures toward PACs. Eventually, this led to
a 5-4 decision, ruling that the restrictions on corporate personhood contained
in the federal BCRA – in the field of campaign finance and expenditures – violated
First Amendment protections of free speech.
Due to
restrictions by the BCRA aimed at the Political Action Committees (PACs), Citizens
United challenged the Constitutionality of the BCRA and pleads the 1st
Amendment – where the Constitution prohibits the government from abridging the
free exercise of religion and speech, and infringing on the freedom of the
press. Citizens United and some amici have made various arguments to the effect
that corporate political speech prohibition in a 441b would be invalid. During
the hearings, Justice Ginsburg addressed the controversial issue of applying
the 1st Amendment to corporate entities: “a corporation, after all, is not
endowed by its creator with inalienable rights. So there may be a distinction
that Congress could draw between corporations and natural human beings for the purpose
of personhood and campaign finance”.
The Amendment in our Bill of Rights, including general laws and regulations,
are left to be vague; Vague enough for them to be reinterpreted and constantly
argued between issues and different cases. “Prolix laws chill speech for the same
reason that vague laws chill speech: People of common intelligence must
necessarily guess at the law's meaning and differ as to its application". The Courts today are
clearly aware of the broad language used in legislation. However, the common
knowledge of a person should be able to identify the truthful and ethical
interpretations of the law and it’s purpose under the circumstances. The ambiguous
wording of section §203 and 441b of the BCRA is interpreted by the Courts
in Citizens United, concluding that
it violates the corporations right to free speech under the First Amendment, by
restricting and regulating the soft money for campaign contributions through
their own general treasuries.
Although the District Courts
prohibited The Movie from being played, the United States Supreme Court
reversed it. The Supreme Court struck down the provisions of the BCRA that
prohibited corporations, unions and even NPO’s from making independent
expenditures and “electioneering communications.” In the 5-4 decision, the U.S. Supreme Court
ruled that corporations and unions have the same political speech rights as
individuals under the First Amendment. It found no compelling governmental
interest for prohibiting corporations and unions from using their general
treasury funds to make election-related expenditures. Thus, it struck down a
federal law banning this practice and also overruled many prior decisions; Two
of which being the Austin v. Michigan
Chamber of Commerce (1990) – which “held that political speech may be
banned based on the speaker’s corporate identity” – and the other being McConnell v. Federal Election Commission
(2003) – which “upheld a facial challenge to limits on electioneering
communications.”
The Courts then officially overruled Austin
and McConnell, striking down both
counts of section 441b’s ban on corporate expenditures in regards to government
suppression on political speech. The Supreme
Courts Justices claimed for the Courts to have had no narrower grounds upon
which to rule, except to handle the First Amendment issues embodied within the
case. The dissenting Justices
were by Stevens, Ginsburg, Breyer and Sotomayor. The Justices who embraced the
free speech rights of corporate entities were Chief Justices Roberts, Scalia,
Kennedy, Thomas and Alito. Stated by Justice Kennedy, “If the First Amendment
has any force, it prohibits Congress from fining or jailing citizens, or
associations of citizens, for simply engaging in political speech.” The broad and vague
elucidation of the 1st Amendment allows these billion-dollar
entities and their unlimited sums of money to largely impact the field of
election law and political campaigns as a result of their recognized human
rights. However, only the dissenters agreed that allowing corporate money to
flood the political marketplace would corrupt democracy.
Throughout
the 90-page dissent led by Justice Stevens and joined by Ginsburg, Breyer and
Sotomayor, they strongly expressed their unhappiness with the majority’s
decision. Stevens argued, “A democracy cannot function effectively when its
constituent members believe laws are being bought and sold." Justice
Stevens had been a factor in over 30 years of Supreme Court decisions, some of
which discussed corporate personhood and solidified large precedent for the
limitation of their rights. Buckley v.
Valeo (1976), a landmark case regarding corporate personhood and its
restrictions, resulted in the U.S. Supreme Court striking down on First
Amendment grounds’ several provisions regarding the Federal Election Campaign
Act. Most prominently, the case struck down limits on spending in campaigns,
but upheld the provision limiting the size of individual contributions to
campaigns. Although the spending of money to influence elections is Constitutionally
protected by free speech, there was a federally placed limit on the campaign
contributions. Justice Stevens, who was part of Buckley, was vocal on the issue of unlimited corporate spending,
stating that, “improper use of money, influencing the result of an election is
to deny the nation of a vital particular, the power of self-protection”.
Stevens argued that nevertheless Buckley was
vigilant in its decision, recognizing the legitimacy of
"prophylactic" measures for limiting campaign spending and found the
prevention of "corruption" to be a reasonable goal for legislation.
Consequently, Stevens argued that Buckley left the door open for carefully
tailored future regulation and not placing enough emphasis on the need to
prevent the “appearance of corruption” in elections.
Similarly,
in the case of Austin v. Michigan Chamber
of Commerce (1990), Michigan Campaign Finance Act banned corporations from
“spending treasury money to make independent expenditures to support or oppose
candidates in state office election”. The Michigan Chamber of Commerce sought
to use its general funds to publish an advertisement in a local newspaper to
support a candidate for the Michigan House of Representatives. The case
recognized a state's compelling interest in combating a "different type of
corruption in the political arena: the corrosive and distorting effects of
immense aggregations of wealth that are accumulated with the help of the corporate
form and that have little or no correlation to the public's support for the
corporation's political ideas.”
With Justice Stevens as part of the majority, the Court concluded that the
Michigan Campaign Finance Act’s prohibition of corporate treasury fund
expenditures for personal interest did not violate the 1st and 14th
Amendment. In Justice Stevens’ opinion, he made the distinction between
individual expenditures and individual contributions that the Courts identified
in Buckley v. Valeo, (1976) – that
they should have little, if any, weight in reviewing corporate participation in
candidate elections. In that context, he continued to say, “I believe the
danger of either the fact, or the appearance, of quid pro quo relationships
provides an adequate justification for state regulation of both expenditures
and contributions” (Case Law). 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 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 concluded, that Courts should permit legislative restrictions to
regulate corporations and their “rights,” while differentiating them from
individual personhood.
Widely
considered to be one of the most conservative Justices on the Supreme Court,
Justice Scalia considers himself to be the “originalist” of the entire Justice
panel. Claimed by himself, Scalia believes his interpretation of the United
States Constitution is the correct understanding of what the original framework
intended. However, his original understanding of the freedom of speech is
believed to be nothing but a cover for his true intentions of personal
interest. Scalia's originalist approach has come under attack from critics, who
view it as "a cover for what they see as Scalia's real intention: to turn
back some pivotal court decisions of the 1960s and 70s", reached by the
Warren and Burger Courts.
Justice Scalia uses originalism as a cloak for his pro-corporate,
rights-limited policy agenda. The proof is in his selective application of so-called
originalism.
In Justice Scalia’s opinion from Citizens
United, he embarks on a detailed exploration of the Framers’ views about
the role of corporations in society. He states, “Though faced with a Constitutional text
that makes no distinction between types of speakers of the corporations, the
dissent feels no necessity to provide even an isolated statement from the
founding era to the effect that corporations are not covered,
but places the burden on petitioners to bring forward statements showing that
they are.” If Justice Scalia’s claim for originalism
of interpreting the US Constitution is just, then he too should find it unconstitutional
to apply the rights of the First Amendments to Corporations who have not been
targeted for rights as the humans of the United States have. The majority
Justices from Citizens United have themselves not found any isolated
statements that would allow corporate entities to be protected by the First
Amendment. Through “originalism,” as their cloak of own interpretation,
the majority Justices claim to have articulated the true intentions of Freedom
of Speech, as applied to corporate personhood.
Although
the U.S. Courts have extended certain Constitutional protections, as well as
categorizing corporations as “persons” from the 14th Amendment, they
still have managed to avoid giving all “person” rights to corporations. For
example, the Supreme Court has not recognized a Fifth Amendment right against
self-incrimination for corporations, since the right can be exercised only on
an individual basis. By giving corporations “some” Constitutional rights, but
claiming they have rights of people, leaves this topic extremely flawed and
confusing. Ralph Nader argues that, “Scalia's originalist philosophy is inconsistent with the justice's acceptance
of the extension of certain Constitutional rights to corporations when at the
time of the Fourteenth Amendment's ratification; corporations were not commonly
understood to possess Constitutional rights” (Weissman). As the Constitutions
originalist he claims to be, Scalia’s concurrence in Citizens United was “traced” by his understanding of the rights of
grouped individuals at the time of the adoption of the Bill of Rights. His
argument is “based on the lack of an exception for groups such as corporations
in the free speech guarantee in the Bill of Rights, and on several examples of
corporate political speech from the time of the adoption of the Bill of Rights”.
Scalia’s claim however, does not sound like his originalist interpretation of
the Constitution, but more his own modified version of implementing “corporate
political speech from the time of adoption” that was never stated in text by
the Constitution. Professor Thomas Colby of The George Washington University
National Law Center argued that, “Scalia's votes in Establishment Clause cases
do not stem from originalist views, but simply from conservative political convictions”
(Joan). The Fourteenth Amendment specifies that, “no state shall deny due
process or equal protection to any person”, but for years now the Supreme Court
has interpreted the language to apply to corporations, a word that appears
nowhere in the Constitution. Neither Justice Scalia nor the other dissenters on
the Court have challenged this interpretation.
Corporate
personhood has generally allowed companies to hold property, sue or be sued,
enter contracts – similar to human beings. However, not all human rights
correctly apply to corporations, like the right to marry, the right to vote,
right to parent a child and so on. Corporations and entities are at a greater
and more advantageous position than the average human, as a result of their
power, reputation and finances. Professor Elizabeth Pollman highlighted the
unfair standard that these corporations are in by stating that “these
Constitutional rights for corporations is a hodgepodge: corporations enjoy
Fourth Amendment safeguards against unreasonable regulatory searches, but do
not have a Fifth Amendment privilege against self-incrimination.” In
an even more recent example, the case of Burwell
v. Hobby Lobby (2014) portrayed again the religious, pro-life bias in our
Court. The cases outcome resulted in religious exemption from laws that apply
to the general public. This decision solidified the Courts position in allowing
corporations the rights of humans even in religious context. The Hobby Lobby
corporation was entitled to religious freedom of their Christian faith by the
Court, and granted the right to object to birth-control coverage in their employee’s
health insurance. However, Hobby Lobby explicitly expressed the desire to run
the company according to Biblical precepts, one of which is the belief that the
use of contraception is immoral, and should not require over 13,000 employee’s
to conform to the same standards. The dean of the UC Irvine School of Law,
Erwin Chemerinsky, said, "The liabilities of the corporation are not
attributed to the owners, so why should the owners be able to attribute their
beliefs to the company?" Some
scholars were recently pondering over, if corporations have First Amendment
rights, could it also claim Second Amendment protections? As Darrell A.H.
Miller wrote in his 2011 article "Guns, Inc." in the NYU Law Review,
"If Citizens United is taken
seriously, the Second Amendment, like the First Amendment and like many other
provisions of the Bill of Rights, guarantees liberties to natural and corporate
persons alike."
Not only have these corporate entities been granted the right to free speech,
via the First Amendment, but they have been given additional human rights with
the Second Amendment, Fifth Amendment, Fourteenth Amendment and so on. It seems
as though corporations are only a few Supreme Court decisions away from
possessing all rights that define individual personhood.
With the
Courts having reversed over a hundred years worth of litigation – in Cases like
FEC v. Wisconsin Right to Life, Inc.
(2007) (WRTL), McConnell v. FEC (2003) , FEC v. Beaumont (2003) , FEC v.
Massachusetts Citizens for Life , Inc., (1986) (MCFL) Austin
v. Michigan Chamber of Commerce (1990), Buckley v. Valeo (1976), and so
many more – the Court’s Justices have shown their commitment to their pro-corporate
and conservative agendas. The First Amendment’s ambiguous wording has been
taken advantage of by the Court’s Elite to result in different interpretations
– essentially beginning to get lost in translation. These conservative Justices
have been part of a majority that has undermined the dynamics of personhood,
challenging the First Amendment’s language and ultimately giving non-living
bodies a more prominent voice in politics than the citizens of the United
States. Our Supreme Court Justices need to abolish any methodology, like
originalism, when adjudicating in Court to prevent any corrupted legislation,
while following Constitutionally sound precedent that had been set throughout
years of history.
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