We know that the Supreme Court’s decision in the pending Hillary: The Movie case, argued in a special early hearing before the Supreme Court on September 9, will be bad for democracy. We don’t yet know how bad it will be.
In 2008, during the presidential primary season, Citizens United, a small nonprofit corporation created by conservative activist Floyd G. Brown in 1988 and financed almost entirely by private contributions, produced a nasty ninety-minute documentary film about then Senator Hillary Clinton. It was plainly intended to show that her election as president would be disastrous.
Citizens United proposed to pay $1.2 million to offer that film to subscribers of a video-on-demand cable television channel. The Federal Election Committee declared that this would violate section 203 of the 2002 McCain-Feingold Act, which prohibits corporations financing any broadcast, cable, or satellite “electioneering communication” from general corporate funds during an election period. Citizens United took the FEC to court, lost, and then appealed to the Supreme Court, arguing that the McCain-Feingold Act, properly interpreted, did not apply to it or to its film.
The Court could have decided in favor of Citizens United on many grounds—that the act did not apply to subscriber television channels, for example. Instead, after hearing the oral argument, it asked the parties, ominously, to reargue the case in a special session, this time debating whether section 203 was unconstitutional as a whole, and so could not be applied to any corporation or corporate broadcast at all, because it infringes the First Amendment free speech rights of corporations. The Supreme Court had previously upheld the constitutionality of the act; the Court explicitly asked the parties to consider whether it should now overrule its past decisions.
Corporations have been denied the First Amendment rights of individuals since 1907. If the five conservatives on the Court now declare that distinction unconstitutional, as the questions they asked in the new oral argument suggest they will, American politics will be radically changed for the worse.
The officers of large corporations have enormous sums of other people’s money—their stockholders’—to spend as they wish, and corporations amass that wealth not because they represent the opinions of people who finance them but because they make cars or sell insurance or a thousand other products people want whatever their politics. It would be a small expense for a major health insurance corporation or a giant automobile manufacturer to broadcast a battalion of attack ads against a congressman who voted against a health care plan it disliked or a bailout it wanted. The threat of such attacks would have an obvious deterrent effect on representatives and senators.
However, that frightening prospect is not enough, in itself, to justify denying corporations the right to create and broadcast political movies or ads. Freedom of speech has many other consequences many people find undesirable; it permits neo-Nazis to hold parades and cartoonists to insult the religious faith of billions of people. Why doesn’t the same freedom also permit giant corporations to defend their financial interests through television attacks on politicians who oppose them? We accept the freedom of the press, after all, in spite of the fact that almost all newspapers are published by corporations. We accept that very rich individuals, like George Soros, have the right to spend their fortunes in expressing their opinions. Why not United Health Care and General Motors?
We will not have a convincing answer to that question if we concede that, in principle, the First Amendment covers them as well, and then argue that their free speech must nevertheless be limited to equalize political power. Political power is necessarily unequal when free speech is recognized because some people have more resources, energy and talent at their disposal. We must rather rethink the point and therefore the scope of the special protection the First Amendment gives to political speech. That provision has two cardinal justifications.
First, it is essential to any government’s legitimacy that it treats the opinions of all citizens as equals in the political process. No one must be denied an opportunity to present his political opinions as best he can to his fellow citizens. No one may be told by government that his opinions are not worthy of audience or consideration. But corporations are not citizens whose political equality can be respected or denied: they are artificial entities created not to form and express values but to make and shelter money. No one is insulted or relegated to second-class status because corporations are not given the rights of real people.
Second, it is essential to democracy that citizens at large have the opportunity to hear as diverse a set of political opinions as possible. No idea, as Oliver Wendell Holmes said, should be excluded from that marketplace of ideas. But corporations have no ideas of their own: they simply parrot the ideas of their officers who could speak on their own as individuals or through their political action committees (PACs) that collect money only from people who wish it to be spent that way. The owners of small family businesses may have tax advantages when they incorporate and speak through their corporations. But tax advantages do not put new ideas into circulation.
Allowing corporations to spend great sums from their general revenue on endlessly repeated television advertisements in prime time would have the opposite effect: it would swamp the market and drive many underfinanced opinions out of easily accessible television slots. Refusing a separate privilege for corporations in televised politics and other forms of mass communication is not a compromise of First Amendment principles; it is only an application of a better understanding of what free speech is for.