Citizens United v FEC

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”[1]. 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.”[2] 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 1^st 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”[3]. 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".[4] 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.”[5] 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.[6] 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.”[7] The broad and vague elucidation of the 1^st 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.[8] 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.”[9] 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 1^st and 14^th 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”.[10] 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.[11] 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.[12] 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.”[13] 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 14^th 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.”[14] 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?"[15] 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."[16] 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.

Bibliography

Sullivan, Kristin. "SUMMARY OF CITIZENS UNITED V. FEDERAL ELECTION COMMISSION." SUMMARY OF CITIZENS UNITED V. FEDERAL ELECTION COMMISSION. N.p., 02 Mar. 2010. Web. 19 Apr. 2015.

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Liptak, Adam. "Justices, 5-4, Reject Corporate Spending Limit." The New York Times. The New York Times, 21 Jan. 2010. Web. 19 Apr. 2015.

CITIZENS UNITED v. FEDERAL ELECTION COMMISSION. The Oyez Project at IIT Chicago-Kent College of Law. 16 April 2015. <http://www.oyez.org/cases/2000-2009/2008/2008_08_205>.

Case Law. "FindLaw | Cases and Codes." FindLaw | Cases and Codes. N.p., n.d. Web. 18 Apr. 2015.

Mayer, Lindsay. "Supreme Court Poised to Overhaul Parts of Campaign Finance System." Opensecrets RSS. N.p., 09 Sept. 2009. Web. 19 Apr. 2015.

Epstein, Richard A. "CITIZENS UNITED V. FEC: THE CONSTITUTIONAL RIGHT THAT BIG CORPORATIONS SHOULD HAVE BUT DO NOT WANT." Harvard Journal of Law and Public Policy 34.2 (2011): 639-61. ProQuest. Web. 19 Apr. 2015.

Amick, John. "McCain Skeptical Supreme Court Decision Can Be Countered." The Washington Post. N.p., n.d. Web. 19 Apr. 2015.

Crabtree, Susan. "Sen. Kerry Backs Changing Constitution to Deal with Supreme Court Decision." TheHill. N.p., 02 Feb. 2010. Web. 19 Apr. 2015.

Hasen. L Richard. “Super-Soft Money.” How Justice Kennedy Paved the way for “SuperPACs” and the return of soft money. The Slate. N.P.n.d Web. 18 Mar. 2014

"Austin v. Mich. Chamber of Comm. 494 U.S. 652 (1990) Opinion." Supreme Court Opinion. Decided March 27, 1990, n.d. Web. 2 Dec. 2015.

CBS News. "Justice Scalia On The Record." Http://www.cbsnews.com/news/justice-scalia-on-the-record/. Scalia, Concurring, 24 Apr. 2008. Web. 2 Dec. 2015.

"CITIZENS UNITED v. FEDERAL ELECTION COMM’N." Https://www.law.cornell.edu/supct/html/08-205.ZC1.html. Scalia, Concurring, 21 Jan. 2010. Web. 2 Dec. 2015.

Fischer, Brendan. "Did Scalia Really Say That? "Citizens United" Lurks Behind Supreme Court's Latest Money-in-Politics Case." Http://www.prwatch.org/news/2013/10/12269/did-scalia-really-say-citizens-united-lurks-behind-supreme-courts-latest-money-po#sthash.aHtJC39B.dpuf. N.p., n.d. Web. 2 Dec. 2015.

Scalia, Concurring. "SUPREME COURT OF THE UNITED STATES FEDERAL ELECTION COMMISSION v. WISCONSIN RIGHT TO LIFE, INC." Https://www.law.cornell.edu/supct/html/06-969.ZS.html. N.p., 25 June 2007. Web. 2 Dec. 2015.

Weissan, Ralph. "Letter to the Editor: Ralph Nader on Scalia’s “originalism”." Http://hlrecord.org/2008/11/letter-to-the-editor-ralph-nader-on-scalias-originalism/. N.p., 13 Nov. 2008. Web. 2 Dec. 2015.

Chemerinsky, Erwin. "The Broad Reach of the Narrow Hobby Lobby Ruling." Los Angeles Times. Los Angeles Times, June 2014. Web. 12 Oct. 2016.

Park, Alex, Muymuy/Thinkstock; Jorgen Mcleman/Shutterstock, Chris Mooney and Molly Redden, Patrick Caldwell, AJ Vicens, and Max J. Rosenthal. "10 Supreme Court Rulings--before Hobby Lobby--that Turned Corporations into People." Mother Jones. Politico, June 2014. Web. 12 Oct. 2016.

Spelliscy, Ciara Torres. "The History of Corporate Personhood | Brennan Center for Justice." The History of Corporate Personhood | Brennan Center for Justice. N.p., Apr. 2014. Web. 12 Oct. 2016.

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[1] Sullivan, Kristin. "SUMMARY OF CITIZENS UNITED V. FEDERAL ELECTION COMMISSION." SUMMARY OF CITIZENS UNITED V. FEDERAL ELECTION COMMISSION. N.p., 02 Mar. 2010. Web. 19 Apr. 2015.

[2] Case Law. "FindLaw | Cases and Codes." FindLaw | Cases and Codes. N.p., n.d. Web. 18 Apr. 2015.

[3] Mayer, Lindsay. "Supreme Court Poised to Overhaul Parts of Campaign Finance System." Opensecrets RSS. N.p., 09 Sept. 2009. Web. 19 Apr. 2015.

[4] Case Law. "FindLaw | Cases and Codes." FindLaw | Cases and Codes. N.p., n.d. Web. 18 Apr. 2015.

[5] Sullivan, Kristin. "SUMMARY OF CITIZENS UNITED V. FEDERAL ELECTION COMMISSION." SUMMARY OF CITIZENS UNITED V. FEDERAL ELECTION COMMISSION. N.p., 02 Mar. 2010. Web. 19 Apr. 2015.

[6] CITIZENS UNITED v. FEDERAL ELECTION COMMISSION. The Oyez Project at IIT Chicago-Kent College of Law. 16 April 2015. <http://www.oyez.org/cases/2000-2009/2008/2008_08_205>.

[7] Liptak, Adam. "Justices, 5-4, Reject Corporate Spending Limit." The New York Times. The New York Times, 21 Jan. 2010. Web. 19 Apr. 2015.

[8] "Inspiration Green." Http://www.inspirationgreen.com/vote-yes-on-37.html. Food Companies Fighting GMO Labeling, 2013. Web. 2 Dec. 2015.

[9] Case Law. "FindLaw | Cases and Codes." FindLaw | Cases and Codes. N.p., n.d. Web. 18 Apr. 2015.

[10] Case Law. "FindLaw | Cases and Codes." FindLaw | Cases and Codes. N.p., n.d. Web. 18 Apr. 2015.

[11] CBS News. "Justice Scalia On The Record." Http://www.cbsnews.com/news/justice-scalia-on-the-record/. Scalia, Concurring, 24 Apr. 2008. Web. 2 Dec. 2015.

[12] Weissan, Ralph. "Letter to the Editor: Ralph Nader on Scalia’s “originalism”." Http://hlrecord.org/2008/11/letter-to-the-editor-ralph-nader-on-scalias-originalism/. N.p., 13 Nov. 2008. Web. 2 Dec. 2015.

[13] Scalia, Concurring. "SUPREME COURT OF THE UNITED STATES FEDERAL ELECTION COMMISSION v. WISCONSIN RIGHT TO LIFE, INC." Https://www.law.cornell.edu/supct/html/06-969.ZS.html. N.p., 25 June 2007. Web. 2 Dec. 2015.

[14] Spelliscy, Ciara Torres. "The History of Corporate Personhood | Brennan Center for Justice." The History of Corporate Personhood | Brennan Center for Justice. N.p., Apr. 2014. Web. 12 Oct. 2016.

[15] Chemerinsky, Erwin. "The Broad Reach of the Narrow Hobby Lobby Ruling." Los Angeles Times. Los Angeles Times, June 2014. Web. 12 Oct. 2016.

[16] Park, Alex, Muymuy/Thinkstock; Jorgen Mcleman/Shutterstock, Chris Mooney and Molly Redden, Patrick Caldwell, AJ Vicens, and Max J. Rosenthal. "10 Supreme Court Rulings--before Hobby Lobby--that Turned Corporations into People." Mother Jones. Politico, June 2014. Web. 12 Oct. 2016.