The Decision That Threatens Democracy

1.

No Supreme Court decision in decades has generated such open hostilities among the three branches of our government as has the Court’s 5–4 decision in Citizens United v. FEC in January 2010. The five conservative justices, on their own initiative, at the request of no party to the suit, declared that corporations and unions have a constitutional right to spend as much as they wish on television election commercials specifically supporting or targeting particular candidates. President Obama immediately denounced the decision as a catastrophe for American democracy and then, in a highly unusual act, repeated his denunciation in his State of the Union address with six of the justices sitting before him.

“With all due deference to separation of powers,” he said, “last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests—including foreign corporations—to spend without limit in our elections.” As he spoke one of the conservative justices, Samuel Alito, in an obvious breach of decorum, mouthed a denial, and a short time later Chief Justice John Roberts publicly chastised the President for expressing that opinion on that occasion. The White House press secretary, Robert Gibbs, then explained Obama’s remarks: “The President has long been committed to reducing the undue influence of special interests and their lobbyists over government. That is why he spoke out to condemn the decision and is working with Congress on a legislative response.” Democrats in Congress have indeed called for a constitutional amendment to repeal the decision and several of them, more realistically, have proposed statutes to mitigate its damage.

The history of the Court’s decision is as extraordinary as its reception. At least since 1907, when Congress passed the Tillman Act at the request of President Theodore Roosevelt, it had been accepted by the nation and the Court that corporations, which are only fictitious persons created by law, do not have the same First Amendment rights to political activity as real people do. In 1990, in Austin v. Michigan Chamber of Commerce,¹ the Court firmly upheld that principle. In 2002, Congress passed the Bipartisan Campaign Reform Act (BCRA) sponsored by Senators John McCain and Russell Feingold, which forbade corporations to engage in television electioneering for a period of thirty days before a primary for federal office and sixty days before an election. In 2003, in McConnell v. Federal Election Commission (FEC), the Court upheld the constitutionality of that prohibition.²

In the 2008 presidential primary season a small corporation, Citizens United, financed to a minor extent by corporate contributions, tried to broadcast a derogatory movie about Hillary Clinton. The FEC declared the broadcast illegal under the BCRA. Citizens United then asked the Supreme Court to declare it exempt from that statute on the ground, among others, that it proposed to broadcast its movie only on a pay-per-view channel. It did not challenge the constitutionality of the act. But the five conservative justices—Chief Justice Roberts and Justices Samuel Alito, Anthony Kennedy, Antonin Scalia, and Clarence Thomas—decided on their own initiative, after a rehearing they themselves called for, that they wanted to declare the act unconstitutional anyway.

They said that the BCRA violated the First Amendment, which declares that Congress shall make no law infringing the freedom of speech. They agreed that their decision was contrary to the Austin and McConnell precedents; they therefore overruled those decisions as well as repealing a century of American history and tradition. Their decision threatens an avalanche of negative political commercials financed by huge corporate wealth, beginning in this year’s midterm elections. Overall these commercials can be expected to benefit Republican candidates and to injure candidates whose records dissatisfy powerful industries. The decision gives corporate lobbyists, already much too influential in our political system, an immensely powerful weapon. It is important to study in some detail a ruling so damaging to democracy.

2.

The First Amendment, like many of the Constitution’s most important provisions, is drafted in the abstract language of political morality: it guarantees a “right” of free speech but does not specify the dimensions of that right—whether it includes a right of cigarette manufacturers to advertise their product on television, for instance, or a right of a Ku Klux Klan chapter publicly to insult and defame blacks or Jews, or a right of foreign governments to broadcast political advice in American elections. Decisions on these and a hundred other issues require interpretation and if any justice’s interpretation is not to be arbitrary or purely partisan, it must be guided by principle—by some theory of why speech deserves exemption from government regulation in principle. Otherwise the Constitution’s language becomes only a meaningless mantra to be incanted whenever a judge wants for any reason to protect some form of communication. Precedent—how the First Amendment has been interpreted and applied by the Supreme Court in the past—must also be respected. But since the meaning of past decisions is also a matter of interpretation, that, too, must be guided by a principled account of the First Amendment’s point.

A First Amendment theory is therefore indispensible to responsible adjudication of free speech issues. Many such theories have been offered by justices, lawyers, constitutional scholars, and philosophers, and most of them assign particular importance to the protection of political speech—speech about candidates for public office and about issues that are or might be topics of partisan political debate. But none of these theories—absolutely none of them—justifies the damage the five conservative justices have just inflicted on our politics.

The most popular of these theories appeals to the need for an informed electorate. Freedom of political speech is an essential condition of an effective democracy because it ensures that voters have access to as wide and diverse a range of information and political opinion as possible. Oliver Wendell Holmes Jr., Learned Hand, and other great judges and scholars argued that citizens are more likely to reach good decisions if no ideas, however radical, are censored. But even if that is not so, the basic justification of majoritarian democracy—that it gives power to the informed and settled opinions of the largest number of people—nevertheless requires what Holmes called a “free marketplace of ideas.”

Kennedy, who wrote the Court’s opinion in Citizens United on behalf of the five conservatives, appealed to the “informed electorate” theory. But he offered no reason for supposing that allowing rich corporations to swamp elections with money will in fact produce a better-informed public—and there are many reasons to think it will produce a worse-informed one. Corporations have no ideas of their own. Their ads will promote the opinions of their managers, who could publish or broadcast those opinions on their own or with others of like mind through political action committees (PACs) or other organizations financed through voluntary individual contributions. So though allowing them to use their stockholders’ money rather than their own will increase the volume of advertising, it will not add to the diversity of ideas offered to voters.

Corporate advertising will mislead the public, moreover, because its volume will suggest more public support than there actually is for the opinions the ads express. Many of the shareholders who will actually pay for the ads, who in many cases are members of pension and union funds, will hate the opinions they pay to advertise. Obama raised a great deal of money on the Internet, mostly from small contributors, to finance his presidential campaign, and we can expect political parties, candidates, and PACs to tap that source much more effectively in the future. But these contributions are made voluntarily by supporters, not by managers using the money of people who may well be opposed to their opinions. Corporate advertising is misleading in another way as well. It purports to offer opinions about the public interest, but in fact managers are legally required to spend corporate funds only to promote their corporation’s own financial interests, which may very well be different.³

There is, however, a much more important flaw in the conservative justices’ argument. If corporations exercise the power that the Court has now given them, and buy an extremely large share of the television time available for political ads, their electioneering will undermine rather than improve the public’s political education. Kennedy declared that speech may not be restricted just to make candidates more equal in their financial resources. But he misunderstood why other nations limit campaign expenditures. This is not just to be fair to all candidates, like requiring a single starting line for runners in a race, but to create the best conditions for the public to make an informed decision when it votes—the main purpose of the First Amendment, according to the marketplace theory. The Supreme Court of Canada understands the difference between these different goals. Creating “a level playing field for those who wish to engage in the electoral discourse,” it said, “…enables voters to be better informed; no one voice is overwhelmed by another.”⁴

Monopolies and near monopolies are just as destructive to the marketplace of ideas as they are to any other market. A public debate about climate change, for instance, would not do much to improve the understanding of its audience if speaking time were auctioned so that energy companies were able to buy vastly more time than academic scientists. The great mass of voters is already very much more aware of electoral advertising spots constantly repeated, like beer ads, in popular dramatic series or major sports telecasts than of opinions reported mainly on public broadcasting news programs. Unlimited corporate advertising will make that distortion much greater.

The difference between the two goals I distinguished—aiming at electoral equality for its own sake and reducing inequality in order to protect the integrity of political debate—is real and important. If a nation capped permissible electoral expenditure at a very low level, it would achieve the greatest possible financial equality. But it would damage the quality of political debate by not permitting enough discussion and by preventing advocates of novel or unfamiliar opinion from spending enough funds to attract any public attention.⁵ Delicate judgment is needed to determine how much inequality must be permitted in order to ensure robust debate and an informed population. But allowing corporations to spend their corporate treasure on television ads conspicuously fails that test. Judged from the perspective of this theory of the First Amendment’s purpose—that it aims at a better-educated populace—the conservatives’ decision is all loss and no gain.

A second popular theory focuses on the importance of free speech not to educate the public at large but to protect the status, dignity, and moral development of individual citizens as equal partners in the political process. Justice John Paul Stevens summarized this theory in the course of his very long but irresistibly powerful dissenting opinion in Citizens United. Speaking for himself and Justices Stephen Breyer, Ruth Ginsburg, and Sonia Sotomayor, he said that “one fundamental concern of the First Amendment is to ‘protec[t] the individual’s interest in self-expression.'” Kennedy tried to appeal to this understanding of the First Amendment to justify free speech for corporations. “By taking the right to speak from some and giving it to others,” he stated, “the Government deprives the disadvantaged person or class of the right to use speech to strive to establish worth, standing, and respect for the speaker’s voice.” But this is bizarre. The interests the First Amendment protects, on this second theory, are only the moral interests of individuals who would suffer frustration and indignity if they were censored. Only real human beings can have those emotions or suffer those insults. Corporations, which are only artificial legal inventions, cannot. The right to vote is surely at least as important a badge of equal citizenship as the right to speak, but not even the conservative justices have suggested that every corporation should have a ballot.

A third widely accepted purpose of the First Amendment lies in its contribution to honesty and transparency in government. If government were free to censor its critics, or to curtail the right to a free press guaranteed in a separate phrase of the First Amendment, then it would be harder for the public to discover official corruption. The Court’s Citizens United decision does nothing to serve that further purpose. Corporations do not need to run television ads in the run-up to an election urging votes against particular candidates in order to report discoveries they may make about official dishonesty, or in order to defend themselves against any accusation of dishonesty made against them. And of course they have everyone else’s access to print and television reporters.

Though the Court’s decision will do nothing to deter corruption in that way, it will do a great deal to encourage one particularly dangerous form of it. It will sharply increase the opportunity of corporations to tempt or intimidate congressmen facing reelection campaigns. Obama and Speaker Nancy Pelosi had great difficulty persuading some members of the House of Representatives to vote for the health care reform bill, which finally passed with a dangerously thin majority, because those members feared they were risking their seats in the coming midterm elections. They knew, after the Court’s decision, that they might face not just another party and candidate but a tidal wave of negative ads financed by health insurance companies with enormous sums of their shareholders’ money to spend.

Kennedy wrote that there is no substantial risk of such corrupting influence so long as corporations do not “coordinate” their electioneering with any candidate’s formal campaign. That seems particularly naive. Few congressmen would be unaware of or indifferent to the likelihood of a heavily financed advertising campaign urging voters to vote for him, if he worked in a corporation’s interests, or against him if he did not. No coordination—no role of any candidate or his agents in the design of the ads—would be necessary.

Kennedy’s naiveté seems even stranger when we notice the very substantial record of undue corporate influence laid before Congress when it adopted the BCRA. Before that act, corporations and other organizations were free to broadcast “issue” ads that did not explicitly endorse or oppose any candidates. The district court judge who first heard the Citizens United case found that, according to testimony of lobbyists and political consultants, at least some “Members of Congress are particularly grateful when negative issue advertisements are run by these organizations…[that]…use issue advocacy as a means to influence various Members of Congress.” That influence can be expected to be even greater now that the Court has permitted explicit political endorsements or opposition as well. Kennedy’s optimism went further: he denied that heavy corporate spending would lead the public to suspect that form of corruption. But the district court judge had reported that

80 percent of Americans polled are of the view that corporations and other organizations that engage in electioneering communications, which benefit specific elected officials, receive special consideration from those officials when matters arise that affect these corporations and organizations.

3.

So the radical decision of the five conservative justices is not only not supported by any plausible First Amendment theory but is condemned by them all. Was their decision nevertheless required by the best reading of past Supreme Court decisions? That seems initially unlikely because, as I said, the decision overruled the two most plainly pertinent such decisions: Austin and McConnell. Nothing had happened to the country, or through further legislation, that cast any doubt on those decisions. The change that made the difference was simply Justice Sandra Day O’Connor’s resignation in 2006 and President George W. Bush’s appointment of Alito to replace her.

Overruling these decisions is itself remarkable, particularly for Roberts and Alito, who promised to respect precedent in their Senate confirmation hearings. One of the reasons that Kennedy offered to justify his decision is alarming. He said that since the conservative justices who dissented in those past cases and who remain on the Court had continued to complain about them, the decisions were only weak precedents. “The simple fact that one of our decisions remains controversial,” he announced, “is, of course, insufficient to justify overruling it. But it does undermine the precedent’s ability to contribute to the stable and orderly development of the law.” In other words, if the four more liberal justices who dissented in this case continue to express their dissatisfaction with it, they would be free to overrule it if the balance of the Court shifts again. That novel view would mean the effective end of the doctrine of precedent on the Supreme Court.

Kennedy’s main argument for his radical departure was different and more complex, however. He declared that the Austin and McConnell decisions were themselves inconsistent with past doctrine so that the Court was faced, in Citizens United, “with conflicting lines of precedent: a pre-Austin line that forbids restrictions on political speech based on the speaker’s corporate identity and a post-Austin line that permits them.” In fact, however, no decision before Austin had held that Congress lacked the power to forbid corporations from using general corporate funds to influence elections.

Kennedy based his claim of “conflicting” precedent on two decisions whose underlying rationales, he says, had that implication. The first is the Court’s 1976 decision in Buckley v. Valeo,⁶ which held that though Congress can limit the amount of private contributions to political campaigns, in order to avoid corruption or the “appearance” of corruption, it may not limit what private individuals or organizations can spend in “independent” political advertising that is not “coordinated” with any candidate’s own election organization. The second is the Court’s 1978 decision in First National Bank of Boston v. Bellotti,⁷ which held unconstitutional a Massachusetts law that prevented the state Chamber of Commerce from campaigning against a referendum to institute a progressive state income tax.

Neither of those two decisions ruled expressly on government’s power to restrict corporate electioneering. In Buckley the justices did not even mention the issue. In Bellotti the majority said explicitly that elections raised different issues from referendums, and that it was therefore not ruling that corporations could not be barred from advertising in elections. Kennedy’s argument must therefore suppose that, notwithstanding this omission in the one case and explicit disclaimer in the other, any principled justification of either of the two decisions must carry over to the case of corporate electioneering. That is the proposition we must now inspect.

The Court’s opinion in Buckley was a complicated, ungainly affair that has been widely criticized.⁸ After the Watergate scandals, in 1971, Congress adopted regulations limiting both financial contributions to any political campaign for national office and expenditures by any candidate for national office. The Court declared the limit on direct contributions constitutional but struck down the limits on what either candidates or individuals themselves could spend on political advertising. The distinction between its two rulings has struck most commentators as more a political compromise than a principled distinction: each ruling has been denounced by opponents as inconsistent with the other. The decision remains a dominant landmark in campaign finance law, but it is dangerous to try to draw any overall principled justification from it.

In any case, however, even if we restrict attention to Buckley’s ruling that Congress may not limit independent advertising by individuals and associations, Kennedy’s reliance on the case simply begs the central issue in Citizens United, which is whether corporations are entitled to the First Amendment protection that individuals and groups of individuals have. We have already noticed a variety of arguments that they do not. Very few individuals have anything like the capital accumulation of any of the Fortune 500 corporations, the smallest of which had revenues of $5 billion (the top of the list—Exxon Mobil—had $443 billion) in 2008. Individuals speak and spend for themselves, together or in association with other individuals, while corporations speak for their commercial interests and spend other people’s money, not their own. Individuals have rights, on which their dignity and standing depend, to play a part in the nation’s government; corporations do not. No one thinks corporations should vote, and their rights to speak as institutions have been limited for over a century. Kennedy’s confident assumption that what Buckley said about people logically must apply to corporations as well is wholly unjustified.

Nor can Kennedy sensibly rely on the rationale of the Bellotti decision. Justice Lewis Powell, speaking for the majority in that case, explained why his decision about referendums did not extend to elections. There are two “principal justifications for the prohibition of corporate speech,” he said.

The first is the State’s interest in sustaining the active role of the individual citizen in the electoral process and thereby preventing diminution of the citizen’s confidence in government. The second is the interest in protecting the rights of shareholders whose views differ from those expressed by management on behalf of the corporation. However weighty these interests may be in the context of partisan candidate elections…they…are not implicated in this case….
Powell emphasized the distinction again, referring to the danger of undue influence in candidate elections. “The case before us presents no comparable problem,” he said,

and our consideration of a corporation’s right to speak on issues of general public interest implies no comparable right in the quite different context of participation in a political campaign for election to public office. Congress might well be able to demonstrate the existence of a danger of real or apparent corruption in independent expenditures by corporations to influence candidate elections.

That is exactly what Congress did demonstrate in the hearings that produced the BCRA. Kennedy might well think that Powell’s opinion exaggerated the difference between referendum proposal contests and candidate elections. But of course he could not rely on that decision to support that thesis and he offered no other argument for it.

So the Court faced no competing line of precedent that would require it to overrule Austin and McConnell as inconsistent with some past tradition. Kennedy’s claim of inconsistency is an invention. He offered one further, very different, argument. He said that if the First Amendment was construed to allow Congress to ban corporations from electioneering, it would also allow Congress to ban endorsements by newspapers or other journals owned by corporations. But the First Amendment’s language explicitly distinguishes freedom of the press from freedom of speech more generally and the Supreme Court has always accepted that a free press (the “fourth estate” of government in a popular phrase) is indispensable to good government. Some large news corporations do have great power and influence. But the public looks to the press, and not to other commercial organizations, for information and opinion. Even powerful news conglomerates must be insulated from government control, not because every corporation has the First Amendment rights of ordinary citizens but because democracy needs their independence.

4.

Two Democrats—Senator Charles Schumer of New York and Representative Chris Van Hollen of Maryland—have announced proposals for legislation to protect the country from the Court’s ruling. The Court might reject some of their proposals—forbidding corporate advertising by TARP recipients who have not paid back the government’s loan, for example—as unconstitutional attempts to ban speech according to the speaker’s identity. Kennedy left open the possibility, however, that Congress might constitutionally accept another of their proposals: banning electioneering by corporations controlled by foreigners.⁹

He also explicitly recognized the constitutionality of another of the Democrats’ proposals: he said that Congress might require public disclosure of a corporation’s expenses for electioneering. (Thomas dissented from that part of Kennedy’s ruling.) Congress should require prompt disclosures on the Internet so that the information could be made quickly available to voters. It would be even more important for Congress to provide for ample disclosure within a television advertisement itself. The disclosure should name not only fronting organizations, like Citizens United, but also at least the major corporate contributors to that organization. Congress should also require that any corporation that wished to engage in electioneering obtain at least the annual consent of its stockholders to that activity and to a proposed budget for it, and that the required disclosure in an ad report the percentage of stockholders who have refused that blanket consent.¹⁰ Finally, Congress should require that the CEO of the major corporate contributor to any ad appear in that ad to state that he or she believes that broadcasting it is in the corporation’s own financial interests.

The conservative justices might object that such disclosure requirements would unduly burden corporate speech and impermissibly target one type of speaker for special restriction. They might say, to use one of Kennedy’s favorite terms, that these requirements would “chill” corporate speech. But we must distinguish measures designed to deter speech from those designed to guard against deception. The in-ad disclosures I describe need not take significantly more broadcast time than the “Stand By My Ad” rule that now requires a candidate to declare in his campaign’s ad that he approves it. If several corporations finance an ad together, much of the required information—the amount of shareholder dissent, for instance—could be disclosed as an aggregate figure. If these requirements discourage a corporation’s speech not because of the expense but for the different reason that managers are unwilling to report shareholder opposition or to acknowledge their fiduciary duty to act only in the financial interests of their own company, then their fear only shows the pertinence of Kennedy’s own claim that “shareholder democracy” is the right remedy to protect shareholders who oppose a corporation’s politics.

Requiring such disclosure would be an important part of any congressional response to Citizens United. But there is another, entirely different, congressional initiative that the decision should spur: a desperately needed expansion of public financing of American elections. A bipartisan group of congressmen has introduced a bill, called “Fair Elections Now,” that would establish a substantial fund to finance candidates for the Senate and House who have received a stipulated number of small contributions—limited to $100—from others. The draft bill now provides that the necessary funds would be collected, in the case of Senate elections, by a small tax on government contractors and, in the case of the House, from 10 percent of revenues from the sale of unused broadcast spectrum.¹¹ Such public financing is now available for presidential primaries and campaigns. Obama declined that financing in order to be free to raise and spend more than its conditions allow, and some congressional candidates might also decline to avoid the fund-raising limits imposed by the Fair Elections Now scheme. But few candidates would be in a position to do that.

There can be no constitutional objection to the draft bill’s provisions for protecting American democracy from the crude distortions of money that have spoiled it for decades and threaten to overwhelm it now. It would be a shame if congressional incumbents failed to support this bill—or some other means of substantially increasing public financing in our elections—just to protect themselves from challengers who would then have sufficient public financing to offset the incumbents’ usual advantage in raising funds.

5.

The Supreme Court’s conservative phalanx has demonstrated once again its power and will to reverse America’s drive to greater equality and more genuine democracy. It threatens a step-by-step return to a constitutional stone age of right-wing ideology. Once again it offers justifications that are untenable in both constitutional theory and legal precedent. Stevens’s remarkable dissent in this case shows how much we will lose when he soon retires. We must hope that Obama nominates a progressive replacement who not only is young enough to endure the bad days ahead but has enough intellectual firepower to help construct a rival and more attractive vision of what our Constitution really means.

—April 15, 2010