No Supreme Court decision in decades has generated such open hostilities among the three branches of our government as has the Court’s 5–4 decision in Citizens United v. FEC in January 2010. The five conservative justices, on their own initiative, at the request of no party to the suit, declared that corporations and unions have a constitutional right to spend as much as they wish on television election commercials specifically supporting or targeting particular candidates. President Obama immediately denounced the decision as a catastrophe for American democracy and then, in a highly unusual act, repeated his denunciation in his State of the Union address with six of the justices sitting before him.
“With all due deference to separation of powers,” he said, “last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests—including foreign corporations—to spend without limit in our elections.” As he spoke one of the conservative justices, Samuel Alito, in an obvious breach of decorum, mouthed a denial, and a short time later Chief Justice John Roberts publicly chastised the President for expressing that opinion on that occasion. The White House press secretary, Robert Gibbs, then explained Obama’s remarks: “The President has long been committed to reducing the undue influence of special interests and their lobbyists over government. That is why he spoke out to condemn the decision and is working with Congress on a legislative response.” Democrats in Congress have indeed called for a constitutional amendment to repeal the decision and several of them, more realistically, have proposed statutes to mitigate its damage.
The history of the Court’s decision is as extraordinary as its reception. At least since 1907, when Congress passed the Tillman Act at the request of President Theodore Roosevelt, it had been accepted by the nation and the Court that corporations, which are only fictitious persons created by law, do not have the same First Amendment rights to political activity as real people do. In 1990, in Austin v. Michigan Chamber of Commerce,1 the Court firmly upheld that principle. In 2002, Congress passed the Bipartisan Campaign Reform Act (BCRA) sponsored by Senators John McCain and Russell Feingold, which forbade corporations to engage in television electioneering for a period of thirty days before a primary for federal office and sixty days before an election. In 2003, in McConnell v. Federal Election Commission (FEC), the Court upheld the constitutionality of that prohibition.2
In the 2008 presidential primary season a small corporation, Citizens United, financed to a minor extent by corporate contributions, tried to broadcast a derogatory movie about Hillary Clinton. The FEC declared the broadcast illegal under the BCRA. Citizens United then asked the Supreme Court to declare it exempt from that statute on the ground, among others, that it proposed to broadcast its movie only on a pay-per-view channel. It did not challenge the constitutionality of the act. But the five conservative justices—Chief Justice Roberts and Justices Samuel Alito, Anthony Kennedy, Antonin Scalia, and Clarence Thomas—decided on their own initiative, after a rehearing they themselves called for, that they wanted to declare the act unconstitutional anyway.
They said that the BCRA violated the First Amendment, which declares that Congress shall make no law infringing the freedom of speech. They agreed that their decision was contrary to the Austin and McConnell precedents; they therefore overruled those decisions as well as repealing a century of American history and tradition. Their decision threatens an avalanche of negative political commercials financed by huge corporate wealth, beginning in this year’s midterm elections. Overall these commercials can be expected to benefit Republican candidates and to injure candidates whose records dissatisfy powerful industries. The decision gives corporate lobbyists, already much too influential in our political system, an immensely powerful weapon. It is important to study in some detail a ruling so damaging to democracy.
The First Amendment, like many of the Constitution’s most important provisions, is drafted in the abstract language of political morality: it guarantees a “right” of free speech but does not specify the dimensions of that right—whether it includes a right of cigarette manufacturers to advertise their product on television, for instance, or a right of a Ku Klux Klan chapter publicly to insult and defame blacks or Jews, or a right of foreign governments to broadcast political advice in American elections. Decisions on these and a hundred other issues require interpretation and if any justice’s interpretation is not to be arbitrary or purely partisan, it must be guided by principle—by some theory of why speech deserves exemption from government regulation in principle. Otherwise the Constitution’s language becomes only a meaningless mantra to be incanted whenever a judge wants for any reason to protect some form of communication. Precedent—how the First Amendment has been interpreted and applied by the Supreme Court in the past—must also be respected. But since the meaning of past decisions is also a matter of interpretation, that, too, must be guided by a principled account of the First Amendment’s point.
A First Amendment theory is therefore indispensible to responsible adjudication of free speech issues. Many such theories have been offered by justices, lawyers, constitutional scholars, and philosophers, and most of them assign particular importance to the protection of political speech—speech about candidates for public office and about issues that are or might be topics of partisan political debate. But none of these theories—absolutely none of them—justifies the damage the five conservative justices have just inflicted on our politics.
The most popular of these theories appeals to the need for an informed electorate. Freedom of political speech is an essential condition of an effective democracy because it ensures that voters have access to as wide and diverse a range of information and political opinion as possible. Oliver Wendell Holmes Jr., Learned Hand, and other great judges and scholars argued that citizens are more likely to reach good decisions if no ideas, however radical, are censored. But even if that is not so, the basic justification of majoritarian democracy—that it gives power to the informed and settled opinions of the largest number of people—nevertheless requires what Holmes called a “free marketplace of ideas.”
Kennedy, who wrote the Court’s opinion in Citizens United on behalf of the five conservatives, appealed to the “informed electorate” theory. But he offered no reason for supposing that allowing rich corporations to swamp elections with money will in fact produce a better-informed public—and there are many reasons to think it will produce a worse-informed one. Corporations have no ideas of their own. Their ads will promote the opinions of their managers, who could publish or broadcast those opinions on their own or with others of like mind through political action committees (PACs) or other organizations financed through voluntary individual contributions. So though allowing them to use their stockholders’ money rather than their own will increase the volume of advertising, it will not add to the diversity of ideas offered to voters.
Corporate advertising will mislead the public, moreover, because its volume will suggest more public support than there actually is for the opinions the ads express. Many of the shareholders who will actually pay for the ads, who in many cases are members of pension and union funds, will hate the opinions they pay to advertise. Obama raised a great deal of money on the Internet, mostly from small contributors, to finance his presidential campaign, and we can expect political parties, candidates, and PACs to tap that source much more effectively in the future. But these contributions are made voluntarily by supporters, not by managers using the money of people who may well be opposed to their opinions. Corporate advertising is misleading in another way as well. It purports to offer opinions about the public interest, but in fact managers are legally required to spend corporate funds only to promote their corporation’s own financial interests, which may very well be different.3
There is, however, a much more important flaw in the conservative justices’ argument. If corporations exercise the power that the Court has now given them, and buy an extremely large share of the television time available for political ads, their electioneering will undermine rather than improve the public’s political education. Kennedy declared that speech may not be restricted just to make candidates more equal in their financial resources. But he misunderstood why other nations limit campaign expenditures. This is not just to be fair to all candidates, like requiring a single starting line for runners in a race, but to create the best conditions for the public to make an informed decision when it votes—the main purpose of the First Amendment, according to the marketplace theory. The Supreme Court of Canada understands the difference between these different goals. Creating “a level playing field for those who wish to engage in the electoral discourse,” it said, “…enables voters to be better informed; no one voice is overwhelmed by another.”4
Monopolies and near monopolies are just as destructive to the marketplace of ideas as they are to any other market. A public debate about climate change, for instance, would not do much to improve the understanding of its audience if speaking time were auctioned so that energy companies were able to buy vastly more time than academic scientists. The great mass of voters is already very much more aware of electoral advertising spots constantly repeated, like beer ads, in popular dramatic series or major sports telecasts than of opinions reported mainly on public broadcasting news programs. Unlimited corporate advertising will make that distortion much greater.
The difference between the two goals I distinguished—aiming at electoral equality for its own sake and reducing inequality in order to protect the integrity of political debate—is real and important. If a nation capped permissible electoral expenditure at a very low level, it would achieve the greatest possible financial equality. But it would damage the quality of political debate by not permitting enough discussion and by preventing advocates of novel or unfamiliar opinion from spending enough funds to attract any public attention.5 Delicate judgment is needed to determine how much inequality must be permitted in order to ensure robust debate and an informed population. But allowing corporations to spend their corporate treasure on television ads conspicuously fails that test. Judged from the perspective of this theory of the First Amendment’s purpose—that it aims at a better-educated populace—the conservatives’ decision is all loss and no gain.
A second popular theory focuses on the importance of free speech not to educate the public at large but to protect the status, dignity, and moral development of individual citizens as equal partners in the political process. Justice John Paul Stevens summarized this theory in the course of his very long but irresistibly powerful dissenting opinion in Citizens United. Speaking for himself and Justices Stephen Breyer, Ruth Ginsburg, and Sonia Sotomayor, he said that “one fundamental concern of the First Amendment is to ‘protec[t] the individual’s interest in self-expression.’” Kennedy tried to appeal to this understanding of the First Amendment to justify free speech for corporations. “By taking the right to speak from some and giving it to others,” he stated, “the Government deprives the disadvantaged person or class of the right to use speech to strive to establish worth, standing, and respect for the speaker’s voice.” But this is bizarre. The interests the First Amendment protects, on this second theory, are only the moral interests of individuals who would suffer frustration and indignity if they were censored. Only real human beings can have those emotions or suffer those insults. Corporations, which are only artificial legal inventions, cannot. The right to vote is surely at least as important a badge of equal citizenship as the right to speak, but not even the conservative justices have suggested that every corporation should have a ballot.
494 U.S. 652. ↩
540 U.S. 93.↩
See Thomas W. Joo, The Modern Corporation and Campaign Finance: Incorporating Corporate Governance Analysis into First Amendment Jurisprudence, 79 WASH. U.L.Q. (April 2001). Some corporate managers do provide for corporate contributions to museums and opera companies, but they are permitted to do that when they judge that this will enhance the corporation's reputation and goodwill.↩
Harper v. Canada (Attorney General),  1 S.C.R. 827, 2004 SCC 33. ↩
Great Britain once limited private expenditures in election campaigns to £5, which deprived an anti-abortion campaigner of any public expression of her views. The European Court of Human Rights declared that limitation a violation of freedom of expression and Britain responded by raising the limit—to £500. See Bowman v. United Kingdom (1998), Eur. Ct. H.R. For the history of this case, and for a comprehensive comparative study of the pertinent constitutional law, see Samuel Issacharoff, "The Constitutional Logic of Campaign Finance Regulation," Pepperdine Law Review, Vol. 36 (2008).↩
494 U.S. 652. ↩
540 U.S. 93.↩
See Thomas W. Joo, The Modern Corporation and Campaign Finance: Incorporating Corporate Governance Analysis into First Amendment Jurisprudence, 79 WASH. U.L.Q. (April 2001). Some corporate managers do provide for corporate contributions to museums and opera companies, but they are permitted to do that when they judge that this will enhance the corporation’s reputation and goodwill.↩
Harper v. Canada (Attorney General),  1 S.C.R. 827, 2004 SCC 33. ↩
Great Britain once limited private expenditures in election campaigns to £5, which deprived an anti-abortion campaigner of any public expression of her views. The European Court of Human Rights declared that limitation a violation of freedom of expression and Britain responded by raising the limit—to £500. See Bowman v. United Kingdom (1998), Eur. Ct. H.R. For the history of this case, and for a comprehensive comparative study of the pertinent constitutional law, see Samuel Issacharoff, “The Constitutional Logic of Campaign Finance Regulation,” Pepperdine Law Review, Vol. 36 (2008).↩