Citizens United famously maintained that corporations could spend unlimited amounts of money to influence the outcome of election campaigns. 82% of the American people rightly reject this decision. Grassroots organizations like Free Speech for People and Move to Amend are pressing for the adoption of different variations of a constitutional amendment recognizing that human beings, not corporations deserve constitutional rights.
I oppose the Citizens United opinion; I believe that artificial corporations are institutionalized collections of contracts, not human beings, and I believe that the constitutional amendments proposed by these organizations are worth supporting, but I do not believe that these amendments are the best response to Citizens United.
In my view, the best response to Citizens United is to amend the Constitution to assure that business corporations have no free speech rights, nor should the Constitution respect any claim that regulating the speech of business corporations interferes with the rights of their potential listeners. I do not believe, however, that it follows from the fact that corporations are not human beings that corporations should have no rights. Yes, the artificial character of corporations means, for example, that they should have no rights against self-incrimination. But it strikes me as obvious that even business corporations should have a right to counsel.
Business corporations should have no free speech rights, but business corporations should have free press rights. So if the New York Times Company editorializes in favor of a candidate in its newspaper, the editorial should be protected under the press clause, but, if it or any other business corporation buys time in another newspaper or media outlet to influence the outcome of an election or to advertise a non-media product, the speech should not be protected.
Similarly, a proper response to the broad sweep of the Citizens United opinion should not punish non-profit corporations for the “sins” of business corporations. Business corporations enter the market and election campaigns not as citizens, but as institutions in pursuit of profit. When business corporations advertise cigarettes, they do so without regard to the health of their potential customers; when they promote candidates, they do so exclusively because they think it will help their bottom line using money acquired without regard to the corporation’s ideology. Contrast a business corporation with a non-profit corporation like Wisconsin Right to Life or Move On (if it were organized in a corporate form). Organizations such as these spend money not for profit, but as an association of citizens. They are markedly different from business corporations and deserve free speech protection. Of course, this opens a potential loophole. What if a business corporation gives money to a non-profit corporation that then spends money on advertisements? The legal answer has been that if a non-profit accepts money from a business corporation, it becomes a business corporation for purposes of election law.
There is an irony to this line of analysis. In my view, Citizens United should have won its case, but not for the reasons the Supreme Court brazenly reached out to give. Citizens United produced a documentary about Hilary Clinton. It was odious, but worthy of constitutional protection as an exercise of the free press right. Citizens United advertised its documentary. Such advertisements have long been considered part of the press function. The record of campaign finance abuses has referred to the corruption arising from the blizzard of political advertisements for and behalf of candidates, not to documentaries or advertisements on behalf of them.
Whatever the outcome of Citizens United the opinion stands for a corpocracy instead of a democracy. Nonetheless, I think it an overreaction to strip all corporations of all rights. In fairness, neither Move to Amend nor Free Speech for People quite does this, but I think their proposals go too far in this direction and are not ideal. In my next post, I will explain why I think that, but I will also explain why their proposals are worthy of support.