In Citizens United, the US Supreme Court made a drastic decision that pushed the United States ever closer to becoming a liberal oligarchy nominally legitimated by quasi-democratic procedures. More notably, it marks yet another step in the transition from what Michael Sandel terms a society with a market towards becoming a market society in which narrowly defined economic interests colonize all dimensions of the public sphere. Indeed, the entire basis of the decision is the bizarre conflation of money with expression; a metaphysical reorientation so bizarre and yet so telling that Citizens United might well be understood by later generations as a founding sermon of a new onto-theology. The decision also reflects, very profoundly, the practical limitations of both classical liberal approaches to expression and originalist/textualist approaches to the law. The fact that such a strange decision could be made by relying on these approaches demonstrates why we should increasingly feel compelled to move past them.
The saga of Citizens United began in 2002, with the passage of the Bipartisan Campaign Reform Act, conceived and pushed by Senator John McCain of the Republican Party and Senator Russ Feingold of the Democrats. The Reform Act prevented corporations and unions from spending money to engage in electioneering within 30 days of a primary and 60 days of an election. Several years later, inspired by liberal filmmaker Michael Moore’s unprecedented financial success with the documentary Fahrenheit 9/11, the conservative non-profit organization Citizens United produced Hilary: The Movie. This film was highly critical of then Senator Hilary Clinton, who at that time was running against future President Barack Obama. They sought to air advertisements for their film during the electoral cycle, but were prevented from doing so. Citizens United pursued litigation, and by 2009 the matter was before the Supreme Court. While Citizens United only sought permission to air its advertisements, in a stunningly broad decision the Court decided to simply do away with all limits on the money organizations could spend on electioneering communication.
The majority opinion was written by Chief Justice Kennedy, who perhaps irrevocably damaged his reputation as a centrist committed exclusively to upholding the rule of law without promoting a partisan agenda. Justice Kennedy argued that the limitations imposed on campaign expenditures violated the First Amendment’s protection of free speech. From there, he quickly went on to conflate such limitations with censorship, which entails the state actively preventing individuals from publishing material. This might have been the case with regard to the specific issue at hand. There is no doubt that prohibiting Citizens United from airing ads from their film constituted a form of censorship that could be challenged. But it remains deeply unclear to me how one goes from conflating such direct instances of censorship with limitations on expenditure. In a remarkably hyperbolic paragraph, Justice Kennedy maintained that
“…The censorship we now confront is vast in its reach. The Government has “muffle[d] the voices that best represent the most significant segments of the economy.” McConnell, supra, at 257–258 (opinion of SCALIA, J.). And “the electorate [has been] deprived of information, knowledge and opinion vital to its function.” CIO, 335 U. S., at 144 (Rutledge, J., concurring in result). By suppressing the speech of manifold corporations, both for-profit and non-profit, the Government prevents their voices and viewpoints from reaching the public and advising voters on which persons or entities are hostile to their interests. Factions will necessarily form in our Republic, but the remedy of “destroying the liberty” of some factions is “worse than the disease.” The Federalist No. 10, p. 130 (B. Wright ed. 1961) (J. Madison). Factions should be checked by permitting them all to speak, see ibid., and by entrusting the people to judge what is true and what is false.”
Unusually, Justice Kennedy went on to claim that such censorship constitutes a dangerous precedent which risks being extended more generally. He argued that, if government is allowed to “censor” the speech of corporate associations now, then it may well attempt to regulate the media next. This would indeed have a catastrophic impact on the expression of speech, were freedom of the press not expressly guaranteed in the text of the First Amendment. Justice Kennedy then goes on to draw a further unusual parallel. He opines that wealthy individuals and corporations are already engaged in corporate lobbying, and that a rich person has the opportunity to spend as much as they wish in electioneering. While some might see these plutocratic tendencies as cause for concern, Justice Kennedy apparently reasons that it is unfair for wealthy individuals to possess the right to spend “unlimited” amounts on elections, but not corporations.
This reasoning is exceptionally odd. As Justice Stevens points out in dissent, “while American democracy is imperfect, few outside the majority of this Court would have thought its faults included a dearth of corporate money in politics.” Kennedy’s arguments privilege an absolutism of principle over any context sensitivity.
In an elegant dissent, Justice Stevens dissected the reasoning of the majority with careful precision. He suggested that the majority’s reasoning is based on an unusual reversal of precedents. Justice Stevens notes that courts had long recognized that corporations are not natural persons, and that their interests are often “furthest” from those protected by the First Amendment.
He then noted that, even were it the case that corporations were “natural citizens” with political interests, that does not lead to the conclusion the majority seemed intent upon reaching. Justice Stevens then analyzes how corporate influence has and continues to have a corrupting influence on American politics. He chastises the majority both for its precedent busting application of a controversial First Amendment theory to a case that did not warrant it, and then warns that this decision may well have far reaching impact in the future. Indeed, Justice Stevens suggests that the majority simply does not live in the “real” world. He also points out that allowing non-resident corporations the opportunity to voice an opinion in a local election will allow them to further disrupt the representative processes that were to be at the heart of American democracy.
I have some contentions with Justice Steven’s reasoning. For instance, while I applaud the concern with combatting the corrupting effects of money as articulated in Austin, I do believe there are reasons to want to “equalize” the expressive capabilities of democratic actors. Justice Stevens explicitly rejects this aim as a legitimate reason to restrict the influence of money during elections, instead focusing entirely on corruption. Not least, I share Justice Steven’s concern that the influence of money will further dilute American democracy. This is hardly an idle concern. As put by Martin Gilens, following a study of responses to thousands of questions from national surveys conducted between 1964 and 2006 “most middle income Americans think that public officials do not care about the preferences of ‘people like me.’ Sadly, the [data] suggest[s] they may be right.”
Determining whether the empirical concerns of scholars like Gilens are borne out will require further studies. But in the remainder of this article, I will set out why I believe Citizens United to be a bad decision in principle as well as in its potential ramifications.
Critical Remarks on Citizens United
I believe the majority erred in conflating the right to expression with the right to expend money when presenting a message. While the two are certainly related, the latter cannot be collapsed directly into the former. One of the defects of the American Bill of Rights is the absolutist character of the rights guaranteed within. Unlike modern bills of rights enshrined in a constitution, such as the Charter in Canada, there are no provisions in the American Bill of Rights which enable courts to qualify the rights guaranteed within by either subjecting them to reasonable limitations or deferring to the legislature. This has resulted in problematic and often confusing common law decisions surrounding rights, where judges are often forced to engage in complex legal gymnastics to qualify rights which no one would wish to see extended indefinitely. The originalist/textualist approach to jurisprudence has further exacerbated this problem by encouraging judges to interpret rights in the most literal manner possible. This is true even in cases where the rights involved, such as to “expression,” are highly ambiguous and clearly need not and should not be extended indefinitely. No one, for example, would accept the claim of corporations that they have a right to lie to consumers about the nature of their products because that is a protected form of “expression.”
This absolutist approach to rights means that cases such as Citizens United are often confronted in a dichotomizing fashion. Either the ability to expend money to present a message is a form of protected expression, or it is not. To my mind, this is deeply misleading. Making a right to expression meaningful means examining the actual capacity of individuals to have their voice heard. As such, a right to expression is not exhausted by simply avoiding constraints on speech. It might be realized by allowing individuals to expend their private resources to amplify their capability to express a certain message in public. In this respect, individuals are indeed entitled to expend money to express themselves. But the corollary to this is that the expression of some might infringe upon the expressive capabilities of others. This would in turn infringe upon their right to expression. The right to expend money to express an opinion is therefore a secondary one, which should be respected so long as it does not unduly conflict with the capacity of others to express their opinion and be heard. This is especially true in political circumstances.
I believe the majority erred in assuming that corporations should possess the full legal personhood required for them to have as extensive a right to freedom of expression as a natural person. This is because a corporation is not a person with agency, in the sense that it is a concrete individual with specific hopes and dreams for itself over time. A corporation is a legal abstraction, constituted by language. It possesses agency only to the extent the individuals who make it up are enabled through law to act on behalf of the legal abstraction to pursue certain interests, and can only be concerned with expression to the extent types of expression benefits the individual who make up the corporation. Because it lacks any immediate agency, any rights a corporation possesses flow secondarily from those possessed by the dignified individuals who act on its behalf.
We are therefore confronted with a situation where an abstract entity can claim rights only on a second hand basis. Moreover, the particular right being claimed, to expend money to engage in electioneering, is related only in a qualified sense to freedom of expression. Restricting one’s capacity to expend money certainly does not, as the majority argues, constitute a form of censorship. Indeed, restricting an individual’s right to expend money may well be necessary to ensure that others enjoy freedom of expression to the same extent. This is very much the case in Citizens United, where abstract legal entities were given tremendous powers to shape a political culture that should be determined by individual citizens.
Professor Matthew McManus teaches Politics and International Relations at TEC De Monterrey