Citizens United: People Are Corporations

by W. Taylor Loe

Time and time again, the media sensationalizes and rabidly vilifies the Supreme Court’s ruling in Citizens United v. Federal Elections Commission.[1]  Amidst the sensationalism, the Fourth Estate tells you that this case turned “corporations into people.”[2]  Moreover, these purported news outlets flash startling, frightening headlines like, “Corporations Are People, and They Have More Rights than You.”[3]

Unsurprisingly, politicians are no better.[4]  As recently as the 2016 presidential election, candidates pledged to introduce a constitutional amendment to overturn the Citizens United decision.[5]  According to former Secretary of State Hillary Clinton, overturning Citizens United would essentially promote fairness.[6]  In the eyes of populists and progressives alike, the Citizens United decision allows for rich individuals, in the form of corporations, to pool together large sums of money to promote political ideals and support politicians.[7]  But, that begs the following questions: (1) Is the ruling in Citizens United “fair” and (2) did the ruling in Citizens United truly turn corporations into people?

In 1783, George Washington, soon to be charged with the care of a budding democratic nation, announced in an address to army officers, “The freedom of speech may be taken away—and, dumb and silent we may be led, like sheep, to the slaughter.”[8]

Inarguably, speech is “an essential mechanism of democracy” and protected by the First Amendment.[9]  In Citizens United, the Court held the First Amendment extends protection to associations of individuals, not just individual speakers.[10]  Additionally, the First Amendment disallows prohibitions of speech based on the identity of the speaker.[11]  Therefore, corporations as associations of individuals have freedom of speech rights.[12]

In an earlier case, Buckley v. Valeo, the Court held spending money is necessary to disseminate speech, and thus limiting this spending is unconstitutional.[13]  Consequently, the Citizens United ruling reaffirms the Court’s decision in Buckley.[14]  Furthermore, an alleged government interest in “leveling the playing field,” or rather equalizing speech between different speakers, is an inherent violation of the U.S. Constitution and would be indefensible—no matter what politicians shout or tweet.[15]

The Bipartisan Campaign Reform Act limits corporations from making direct contributions—funding coordinated with a candidate.[16]  In Citizens United, and earlier cases, the Court upheld regulations of direct contributions to candidates and recognized a governmental interest in preventing quid pro quo corruption or the appearance of such corruption.[17]  Nevertheless, the Court refrained from extending this governmental interest to independent expenditures.[18]   From a definitional perspective, “independent expenditures” are funds used to promote a political idea or platform without the consent or coordination of a political candidate.[19]   In light of this, because independent expenditures are uncoordinated with political candidates, the Court conversely held that the government had no compelling interest in regulating such uncoordinated spending.[20]

In sum, Citizens United is “fair” in the greatest sense of the word—it protects against speech discrimination based on identity of the speaker.  While the media, or politicians, may cry that the Citizens United decision does the opposite—think of the doomsday consequences if the government were allowed to prohibit political speech based on the identity of a speaker.

The way to defeat rampant sensationalism is unyielding logic.  After reading Citizens United, it logically follows that corporations are not people and, more importantly, the United States Supreme Court did not birth the notion that corporations are people.  Beneath the fear-mongering headlines and distracting rhetoric of classism, a corporation is nothing more than a mere collection, or association, of people.  The truth is people are corporations.

[1] Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010); see Kent Greenfield, If Corporations Are People, They Should Act Like It, Atlantic (Feb. 1, 2015), https://www.theatlantic.com/politics/archive/2015/02/if-corporations-are-people-they-should-act-like-it/385034/; see also Catherine Rampell, Corporations Are People. So What If People Were Corporations?, Wash. Post (July 24, 2014), https://www.washingtonpost.com/opinions/catherine-rampell-people-should-claim-the-same-rights-as-companies/2014/07/24/460aea0c-135b-11e4-9285-4243a40ddc97_story.html?utm_term=.85c3c00eafcb (arguing that if people had the same rights as corporations, “If you killed someone, stole a house, funded a genocidal regime or terrorize the global economy, you wouldn’t go to jail.  At worst, you’d pay a fine”); Liz Kennedy, 10 Ways Citizens United Endangers Democracy, Demos (Jan. 19, 2012), http://www.demos.org/publication/10-ways-citizens-united-endangers-democracy.

[2] Alex Park, 10 Supreme Court Rulings—Before Hobby Lobby—That Turned Corporations into People, Mother Jones (July 10, 2014, 6:00 AM), http://www.motherjones.com/politics/2014/07/how-supreme-court-turned-corporations-people-200-year-saga (arguing the Supreme Court “turned corporations into people”); see also Nina Totenberg, When Did Companies Become People? Excavating the Legal Evolution, NPR (July 28, 2014, 4:57 AM), http://www.npr.org/2014/07/28/335288388/when-did-companies-become-people-excavating-the-legal-evolution (“Are corporations people? The U.S. Supreme Court says they are, at least for some purposes.”).

[3] Adam Winkler, Corporations Are People, and They Have More Rights than You, Huffington Post (June 30, 2014, 11:10 AM), http://www.huffingtonpost.com/adam-winkler/corporations-are-people-a_b_5543833.html  (The article incorrectly proclaims “the Supreme Court’s 2010 decision allow[ed] unlimited corporate and union spending on political issues.”).

[4] Sam Frizell, Will Democrats Stop President Trump’s Supreme Court Nominee?, Time (Jan. 31, 2017), http://time.com/4656072/supreme-court-neil-gorsuch-democrats/  (“‘I cannot support any nominee who does not recognize that corporations are not people,’ said Ohio Sen. Sherrod Brown.”); Getting Big Money Out of Politics and Restoring Democracy, Friends of Bernie Sanders, https://berniesanders.com/issues/money-in-politics/ (“The Citizens United decision hinges on the absurd notion that money is speech, corporations are people, and giving huge piles of undisclosed cash to politicians in exchange for access and influence does not constitute corruption.”) (last visited Mar. 11, 2017); Adam B. Schiff, The Supreme Court Still Thinks Corporations Are People, Atlantic (July 18, 2012), https://www.theatlantic.com/politics/archive/2012/07/the-supreme-court-still-thinks-corporations-are-people/259995/ (penned by U.S. Representative Adam B. Schiff for California Twenty-eight Congressional District who incorrectly asserts the Citizens United Court overturned “a century of jurisprudence”); Joel Connelly, McCain to Supremes: Corporations Are NOT People, Seattle Post-Intelligencer (June 15, 2012, 6:39 PM), http://blog.seattlepi.com/seattlepolitics/2012/06/15/mccain-to-supremes-corporations-are-not-people/ (“Sen. John McCain used a TV appearance Friday to take out after the U.S. Supreme Court’s controversial 2010 Citizens United ruling, which removed all limits from campaign spending.” The very first sentence of this article misrepresents the Court’s ruling.).

[5] Benjamin Oreskes, Clinton Pledges Constitutional Amendment to Overturn Citizens United Ruling, Politico (July 16, 2016, 1:28 PM), http://www.politico.com/story/2016/07/hillary-clinton-citizens-united-225658 (“Hillary Clinton committed Saturday to introducing a constitutional amendment to overturn the Citizens United decision within her first 30 days in office, if she’s elected president.”); Getting Big Money Out of Politics and Restoring Democracy, Friends of Bernie Sanders, https://berniesanders.com/issues/money-in-politics/ (“[W]e must overturn, through a constitutional amendment, the disastrous Citizens United Supreme Court decision.”) (last visited Mar. 11, 2017).

[6] Oreskes, supra note 5 (“The amendment would allow Americans to establish common sense rules to protect against the undue influence of billionaires and special interests and to restore the role of average voters in elections,’ a Clinton spokesman said in statement.”).

[7] John O. McGinnis, Liberals Are Dangerously Wrong About Citizens United: Money is Speech, L.A. Times (May 20, 2016, 5:00 AM), http://www.latimes.com/opinion/op-ed/la-oe-mcginnis-money-speech-liberals-20160522-snap-htmlstory.html; Margaret Talbot, The Populist Prophet, New Yorker (Oct. 12, 2015), http://www.newyorker.com/magazine/2015/10/12/the-populist-prophet (Senator Bernie Sanders is critical of the Citizens United decision, because he believes it permits unlimited campaign spending by corporations and further gives billionaires an unfair amount of political influence.).

[8] From George Washington to Officers of the Army, 15 March 1783, Nat’l Archives (Feb. 21, 2017), http://founders.archives.gov/documents/Washington/99-01-02-10840.

[9] U.S. Const. amend. I; Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 312 (2010).

[10] Citizens United, 558 U.S. at 342–43; see Pac. Gas & Elec. Co. v. Pub. Util. Comm’n of Cal., 475 U.S. 1, 8 (1986) (“The identity of the speaker is not decisive in determining whether speech is protected.  Corporations and other associations, like individuals, contribute to the discussion, debate, and the dissemination of information and ideas that the First Amendment seeks to foster.”).

[11] Citizens United, 558 U.S. at 350 (“[T]he First Amendment generally prohibits the suppression of political speech based on the speaker’s identity.”).

[12] Citizens United, 558 U.S. at 342–43 (The Supreme Court rejected the argument that political speech of corporations or other associations should be treated differently under the First Amendment.).

[13] Buckley v. Valeo, 424 U.S. 1, 19 (1976) (“A restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached. This is because virtually every means of communicating ideas in today’s mass society requires the expenditure of money.”).

[14] Citizens United, 558 U.S. at 339.

[15] Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 350 (2010); see Buckley, 424 U.S. at 48–49 (“But the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.”); Sherrod Brown (@SenSherrodBrown), Twitter (Jan. 31, 2017, 5:27 PM), https://twitter.com/sensherrodbrown/status/826602768110583809 (reiterating his stance that the Court ruled “corporations are people”).

[16] Bipartisan Campaign Reform Act of 2002, 116 Stat. 81; Citizens United, 558 U.S. at 357.

[17] Citizens United, 558 U.S. at 357; see Buckley, 424 U.S. at 28 (In light of the government’s weighty interest in preventing corruption or the appearance of corruption, restricting the size of financial contributions to political candidates is not unconstitutional.); Fed. Election Comm’n v. Nat’l Conservative Pol. Action Comm., 470 U.S. 480, 49–46 (1985) (“Preventing corruption or the appearance of corruption are the only legitimate and compelling government interests thus far identified for restricting campaign finances.”).

[18] Citizens United, 558 U.S. at 345.

[19] Brent Ferguson, Beyond Coordination: Defining Indirect Campaign Contributions for the Super PAC Era, 42 Hastings Const. L.Q. 471 (Mar. 11, 2015).

[20] Citizens United, 558 U.S. at 345 (With respect to independent expenditures, “the absence of prearrangement and coordination . . . alleviates the danger that expenditures will be given as a quid pro quo for improper commitments from the candidate.”); see id. (If outside expenditures were made with the consent of or in cooperation with a candidate, they are treated as indirect contributions to candidates.).