Citizens United: What happens next?

 

 

Citizens United v. FEC is the kind of opinion that deserves fierce and decisive condemnation by the American public. Indifferent to the threat of unrestrained economic power, and wedded to a rhetoric of corporate personhood that only seems plausible in the realm of disorienting metaphor, it preaches a vision of free speech that most Americans have rejected for over a century.  Judicially rewiring the First Amendment into an efficient convertor of economic might to political influence, Justice Anthony Kennedy ’61 et al. rewrote a major swath of constitutional law in answer to a question posed only by the majority to itself.  As a result, our First Amendment will spend the foreseeable future frozen in irony – a status born of the role it now plays in gutting the very right it exists to champion.

Harm to free speech is only the beginning, however, of Citizens United‘s consequences.  As judicial and legislative elections fall under the vastly expanded sway of corporate dollars, we can anticipate a new bevy of creative tax loopholes, deregulatory initiatives, and pro-business doctrinal shifts in many fields of private law.  And as Prof. Mark Roe ’75 observes in the Financial Times, Citizens United may actually reduce economic dynamism by encouraging incumbent business interests to deploy their new political muscle against emerging market entrants (who lack the organization and influence to successfully oppose regulatory obstacles).

Citizens United also significantly expands an incentive structure that was already highly conducive to actual and perceived political corruption. Fortune 100 companies reported revenues of $13.1 trillion during the last election cycle, as compared to approximately $745 million raised by Barack Obama ’91, and averages of $711,000 and $2.44 million respectively for House and Senate candidates. ExxonMobil alone reported profits of $85 billion across this same period.  With unlimited access to funds, these corporations would wield extraordinary power over the electoral prospects of our political class – the harms of which are both obvious (bad policies that favor narrow corporate agendas over the public interest) and subtle (reduced popular faith in democratic processes).

It may seem strange to argue that an expansion of free speech will produce this parade of horribles. Justice Kennedy frames the issue in absolute terms, referring constantly to the “chill” of corporate speech. How, then, to square a serious commitment to liberty with the troubling concerns raised by Citizens United? As Prof. Larry Tribe ’66 explained to the House Judiciary Committee, “it would be passing strange if the First Amendment, so central to our system of self-government, compelled us to choose between free speech and democratic integrity.” Properly understood, of course, it does no such thing.  To reach its conclusion, the Court piles one questionable assumption atop another – treating corporations as “associations of individuals,” granting those corporations full free speech rights, equating money and speech, and relegating to analytic irrelevance any concerns about the real-world effect of unmatched corporate wealth.

The combination of these errors leads to a preposterous result, forgetful of the point that the First Amendment protects democracy by safeguarding self-expression essential to political discourse.  Although “we the people” still reserve the right to speak, our relative ability to exercise that freedom in meaningful service to democratic self-governance has been badly compromised.  This result, moreover, is not required by the Constitution.  As explained by Justice Stevens, the unique advantages and characteristics of corporations – legal fictions that we endow with impressive benefits to facilitate economic growth – provide sufficient and long-recognized cause for denying them the same rights as natural persons.

Some commentators, mainly associated with the political right, tell us not to worry.  Citizens United, they insist, will do little to disturb the status quo. This optimistic outlook depends upon at least five doubtful assumptions: (1) legislatures will act effectively to limit its impact; (2) judicial elections will not be meaningfully affected; (3) patterns of corporate behavior will remain untouched by an expressive and doctrinal shift in legal culture and regulatory power; (4) courts will not construe Citizens United as the basis for further expansion of corporate rights; and (5) patterns of approximate party in donations to both political parties will persist undisturbed (the result of which would be greater corporate control across the partisan spectrum). This argument is, quite simply, wrong on its merits. And perpetuation of the status quo ante – with its perverse incentives and tendency toward corruption – would not be cause for reassurance.

At a recent American Constitution Society event, Jeff Clements and Prof. Lawrence Lessig offered wider perspective on these issues.  Clements emphasized the important role that First Amendment doctrine has played in recent conservative efforts at deregulation. This has sometimes taken the form of limitations on the regulation of commercial speech (i.e. cigarette advertisements targeting children), but, in a more pernicious form exemplified by Citizens United, has undermined popular control over elections in the name of corporate liberty.

Lessig agreed.  He observed “a Blade Runner-like moment in this opinion,” and gleefully acknowledged his excitement that computers, too, may soon find favor with Justices keen to endow rights upon non-human entities. But he focused squarely on corruption. Charging the Court with hypocrisy, he contrasted its apparent disregard for congressional efforts to secure electoral integrity with the concern for judicial purity that animated Caperton v. A.T. Massey Coal Co.  Noting that Congress is widely seen as the most corrupt branch of government, and that political action committees, lobbyists, and fundraising events already provide corporations with plenty of expression, Lessig worried that Citizens United will further prevent Congress from realizing the desires of its one true constituency – “we the people.”

So what can we do next?  Lessig and Clements both support a constitutional amendment to remedy the decision’s effecys.  Lessig ups by the ante by calling for a full constitutional convention (from which a more wide-ranging group of reforms might emerge). Both also urged Congress to quickly pass the Fair Elections Now Act, championed by Senators Richard Durbin and Arlen Specter. Other commentators have urged changes to corporation law, shareholder governance, disclaimer and disclosure requirements, anti-coordination rules, and the terms applied to government contractors.  At the state level, Citizens United has emboldened advocates of a shift from the election to appointment of judges. Many of these proposals strike broadly at a much larger pattern of corruption. Although few of these would truly fix the problem, they would certainly provide a badly-needed palliative.

All of which brings us to the main issue:  Does American democracy remain sufficiently energetic to face this challenge? That, I must admit, is an open question. It is remarkable that our president felt the need to spend part of his State of the Union address reassuring us that our political institutions are indeed capable of acting for the common good.  Not that Congress has done much in recent years to justify such faith, as evidenced most glaringly by its recent “debate” over health care legislation. The postmodern air of unreality that pervades much of contemporary political discourse, in which astroturf has replaced grassroots and partisan pundits occupy different realities, seems to leave little room for the kind of meaningful national conversation that might rest
ore integrity to our electoral process.

Such reform efforts are further complicated by Citizens United itself, which, unlike previous Supreme Court decisions that merely denied people rights, commits the further indecency of corrupting the very electoral process that might normally facilitate remedial action. In the future, any legislator involved in efforts to limit or modify corporate funding of elections will confront the multi-billion dollar megaphone of corporate general treasury funds.  Needless to say, the titans of corporate America might feel strongly about ensuring their recently secured ability to flood our marketplace of ideas with PR-friendly sound-bites.

Completing a process begun decades ago, five members of the Supreme Court have staked the future of America’s electoral system on their belief that we previously suffered for a lack of corporate influence. The First Amendment, as shown clearly by Justice Stevens, did not compel that result. Now the time has come for the public, and our elected representatives, to deal with its consequences. Any solution worthy of the name will undoubtedly involve extraordinary measures, including some kind of landmark legislation. “We the people” must therefore be brave.  Only if the American public stands firmly behind advocates of reform can we hope to reinvigorate the integrity of our treasured political institutions.

Joshua Matz is a 1L.

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