Elisabeth Chaves is a Visiting Assistant Professor in Government and International Affairs at Virginia Tech. She holds a J.D. from the University of San Diego School of Law.
At the start of 2010, the Supreme Court ruled in Citizens United v. Federal Election Commission that the provision of the Bipartisan Campaign Reform Act of 2002 (BCRA) banning corporations and unions from engaging in “electioneering communications” during the thirty- and sixty-day windows before primary and general elections, respectively, was an unconstitutional infringement on free speech. There was an immediate outcry.
Critics lambasted the Court for giving corporations the same free speech rights that individuals possessed. They also decried the equation of money with speech that the decision implied. Justice Stevens wrote in his dissent, “While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.” The 2010 midterm election following the decision was the most expensive on record. According to the Campaign Finance Institute, independent groups spent nearly $300 million, more than double what was spent in 2008, earning some the title of “super PACs.” Additionally, commercial broadcasters earned more than $3 billion in political ad revenue. Since the decision, one Virginia court has even allowed direct corporate contributions, following the reasoning of Citizens United that there is no distinction to be made between a corporation and a natural person.
The Supreme Court’s decision should necessarily focus our attention on the degree to which economic inequality, or put differently, differences in economic resources, affect political equality. While we have no constitutionally guaranteed right to either political or economic equality (and most assuredly not to the latter), for democracy to retain its meaning of rule by the people, equal political rights must be ensured. Without at least the ideal of political equality, democracy becomes something else. While equal participation in voting at election time may not be the soundest indicator of political equality, what is important here is that if the right to vote for one’s representatives is a measure of political equality, then is that political equality diminished by the role of money (economic inequality) in elections?
The Citizens United decision largely focused on a corporation’s right to “free” speech without explicitly extending such a right. This follows a pattern within the Supreme Court’s decisions of increasing corporations’ constitutional protections without always bringing the question to the front and center of their opinions. The first holding to grant corporations constitutional personhood was Santa Clara v. Southern Pacific Railroad (1886). However, the declaration there that corporations should enjoy protection under the Fourteenth Amendment was made by the chief justice from the bench prior to reading the opinion and can be found in the reporter’s notes. In a sense, corporations snuck into the embrace of constitutional protection through a backdoor. No explanation was given in Santa Clara for why the Fourteenth Amendment should extend to corporations. Since the decision, corporations have also been granted rights under the First, Fourth, Fifth and Seventh Amendments.
The case to place corporations’ political speech under the protection of the First Amendment was First National Bank of Boston v. Bellotti (1978). The question before the Court in Bellotti was whether a state could prohibit corporations from using their general treasury funds for political speech during a referendum. The Massachusetts state law in question prohibited corporate speech during a referendum whose outcome did not directly affect the corporation’s pecuniary interest.
The Supreme Court held that corporations could not be prohibited from speaking on political matters, but the Court left open the question of whether a corporation could use its general treasury funds during political campaigns for election to state office. The decision did not explicitly assert that a corporation is a person for purposes of the First Amendment, preferring to focus on the speech rather than the speaker.
The majority in Citizens United took a similar approach. They protected corporate political speech rather than corporations. However, the decision upheld the disclaimer, disclosure, and reporting requirements of the BCRA. The Court pointed to disclosure almost as a cure-all for any campaign finance concerns. They reasoned that, as long as the source of speech can be properly identified, there is no harm in allowing all speech (and all speakers) to be heard.
Moreover, the majority essentially held that a corporation’s speech is not only not detrimental to the political process, but also is actually a valuable part of that process.
The Government has ‘muffle[d] the voices that best represent the most significant segments of the economy.’ And ‘the electorate [has been] deprived of information, knowledge and opinion vital to its function. 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.
In essence, the Court’s opinion stands squarely at odds with the sentiment that corporations should not be part of the political process because their private interests run counter to the formation and acquisition of a public interest and/or can overwhelm or defeat the interests of everyday citizens. Pluralist in the extreme, the Court found that corporations are but one other group whose interests can be aggregated to total a public interest that is a pastiche of private interests run amok. However, why corporate interests should not contribute to, or be allowed to participate in, the democratic process is a question that liberalism fails to answer sufficiently.
Critics of Citizens United want to limit the activity of corporations to the economic sphere, denying them access to the political, but this is a fairly naïve argument since corporations already enjoy so much access in the forms of lobbying, providing expert opinion to legislators and regulators, holding seats in government through Washington’s famous revolving door, and so forth. Further, the idea that any separation exists between the economic and political spheres is useful only as a heuristic and not a reflection of reality.
While there are many arguments to be made about why and how corporations are different from natural persons and why their speech should not play the same role (or any role) in the democratic political process, the overall claim that campaign finance needs to be reformed lacks a coherent theoretical basis. Should it only be corporations whose political speech is limited? Should all corporations and associations (for-profit and not-for-profit) be subject to speech regulation? Is it really less about who can spend the money and more about how much money can be spent? What is an acceptable disparity of resources between candidates? Or is it a question of how election campaigns are conducted and a media landscape that privileges wealth?
Campaign finance reform tries to control the role of money/wealth in elections, whether to prevent corruption (or the appearance thereof), to maintain a vibrant public sphere, or to level the playing field. Most arguments for the necessity of reform fit within one of three broad lines of reasoning. All three of these rationales run up against an over-individualized view of the First Amendment that not only gives individuals an almost absolute right to free speech, but now extends this right to corporate bodies as well. Some view this as a battle between the competing liberal values of political equality and free speech, or liberty. But in reality, “free” speech is a question of money at election time when political equality becomes subject to economics. The political cannot be separated from the economy.