Tag Archives | Citizens United
George Will recently published a good Washington Post column on the ill-conceived People’s Rights Amendment, which Eugene Volokh and I blogged about here and here. Will points out several serious flaws in the proposal, and builds on some of the points we made:
Controversies can be wonderfully clarified when people follow the logic of illogical premises to perverse conclusions….
Joined by House Minority Leader Nancy Pelosi (D-Calif.), 26 other Democrats and one Republican, [Rep. James McGovern] proposes a constitutional amendment to radically contract First Amendment protections. His purpose is to vastly expand government’s power — i.e., the power of incumbent legislators — to write laws regulating, rationing or even proscribing speech in elections that determine the composition of the legislature and the rest of the government. McGovern’s proposal vindicates those who say that most campaign-finance “reforms” are incompatible with the First Amendment…
His “People’s Rights Amendment” declares that the Constitution protects only the rights of “natural persons,” not such persons organized in corporations…
McGovern stresses that his amendment decrees that “all corporate entities — for-profit and nonprofit alike” — have no constitutional rights. So Congress — and state legislatures and local governments — could regulate to the point of proscription political speech, or any other speech, by the Sierra Club, the National Rifle Association, NARAL Pro-Choice America or any of the other tens of thousands of nonprofit corporate advocacy groups, including political parties and campaign committees.
Newspapers, magazines, broadcasting entities, online journalism operations — and most religious institutions — are corporate entities. McGovern’s amendment would strip them of all constitutional rights. By doing so, the amendment would empower the government to do much more than proscribe speech. Ilya Somin of George Mason University Law School, writing for the Volokh Conspiracy blog, notes that government, unleashed by McGovern’s amendment,
The Occupy Wall Street movement is often seen as a left-wing counterpart to the Tea Party movement. Until recently, however, OWS has differed from the Tea Party in so far as it paid little attention to constitutional issues. By contrast, constitutional issues are a central focus of the Tea Party, which claims that the courts have departed from the original meaning and have allowed the federal government to seize too much power. As I explained in this article, the Tea Party fits the classic model of “popular constitutionalism” – a popular movement that makes constitutional issues a central focus of its agenda. Until now, such issues have been mostly peripheral for OWS.
Today, however, a group inspired by OWS is holding a series of “Occupy the Courts” protests, which do focus on constitutional issues, mostly attacking the Supreme Court’s campaign finance decisions:
The “Occupy” movement will turn its focus on the nation’s highest court Friday as organizers plan to gather around the Supreme Court building dressed like justices and singing songs of the Motown group, The Supremes.
The event is being held around the two-year anniversary of the Supreme Court decision in the case of Citizens United v. Federal Election Commission, which removed many limits to corporate spending in federal political campaigns, organizers say….
The one-day event dubbed “Occupy the Courts” is organized by the grassroots group called Move to Amend and was inspired by the Occupy Wall Street participants, organizers said.
“Move to Amend volunteers across the USA will lead the charge on the judiciary which created — and continues to expand — corporate personhood rights,” the Occupy the Courts website states.
There is some irony in the OWS protestors campaign against “corporate personhood.” OWS gets a great deal of financial and organizational support from labor unions [...]
A CNN article by Jeffrey Toobin asserts, among other things, that
The political effect of, if not motivation for, the [Citizens United] decision was clear: Citizens United looks to be a big win for Republicans, who are the likely beneficiaries of the newly lubricated corporate largesse.
But is that really so? In California, one of the 26 states where independent expenditures for and against candidates have long been legal, a recent Fair Political Practices Commission report suggests that — among the top 10 independent spending committees, which together spent nearly half the total amount that was independently spent — unions probably outspent corporations by roughly 2 to 1 (click on the link for more details). [UPDATE: For greater precision, I added the material between the dashes, which I had originally omitted in this post, though I had included it in the post I linked to.]
Of course, perhaps things are different in other states (I haven’t seen any data from other states), and perhaps they will end up being differently in federal elections (no-one can know for sure until it happens). I’d love to see any more data on the subject, of course. I’d also love to see how lopsided union independent spending is in favor of the Democrats, and how lopsided corporate independent spending is in favor of the Republicans. If, for instance, unions spend overwhelmingly to elect Democrats while businesses split their spending more evenly (true for contributions by PACs to candidates, but I can’t say whether it would also be true for independent expenditures from unions’ and corporations’ general treasuries), then the net effect might favor Democrats even if corporations spend more total than unions do.
I asked Jeffrey Toobin whether he had more data on this, but he replied that his statement was an inference from [...]
One of the standard arguments put forward by critics of the Supreme Court’s decision protecting corporate political speech in Citizens United is that people aren’t entitled to constitutional rights when they use corporate resources because corporations are “state-created entities.” If the state can create an entity, it supposedly also has the power to define its rights any way it pleases. This is slightly different from the argument that people using corporate resources don’t deserve constitutional protection because corporations aren’t “real people.” But it has many of the same weaknesses, and some additional ones as well.
I. Media Corporations are “State-Created Entities” Too.
The first problem is that, like the “real people” argument, it applies to media corporations as well. On this view, the government would be free to censor the New York Times, Fox News, the Nation, National Review, and so on. Nearly every newspaper and political journal in the country is a corporation. If the Supreme Court accepted this view, it would have to overturn decisions like New York Times v. Sullivan and the Pentagon Papers case.
II. The Impact on Other Constitutional Rights.
A second issue is that this logic applies not only to corporate free speech rights, but to all other constitutional rights exercised through the use of corporate resources. If people using state-created entities don’t have free speech rights, they don’t have any other constitutional rights either. After all, the supposed power to define the rights of state-created entities isn’t limited to free speech rights. Thus, government would not be bound by the Fourth Amendment in searching corporate property (including employee offices). It could take corporate property for private use without paying compensation because the Fifth Amendment would no longer apply. It could forbid religious services on corporate property (including that owned [...]
In my last post, I explained why it’s a mistake to deny free speech rights to people organized as corporations on the grounds that corporations aren’t “real people.” It’s true, of course, that a corporation is not a person. But the people who own and operate it are. “Corporate speech” is really just speech by people using the corporate form.
The mistake here is one we see in other contexts. Critics often denigrate rights by conflating them with the means used to exercise them. For example, a standard rhetorical attack on property rights is the claim that property rights aren’t really “human rights.” Property has no rights, it is said. Its true of course that property as such is not entitled to any rights. However, property rights actually belong to the people who own the property, not the physical objects themselves. As the Supreme Court explained in its 1972 decision in Lynch v. Household Financial Corporation:
[T]he dichotomy between personal liberties and property rights is a false one. Property does not have rights. People have rights. The right to enjoy property without unlawful deprivation, no less than the right to speak or the right to travel, is in truth a “personal” right…. In fact, a fundamental interdependence exists between the personal right to liberty and the personal right in property.
When I criticize decisions like Kelo v. City of New London, the objection is not that government has violated the rights of land or buildings, but those of the people who own them.
This rhetorical tactic is most often used by liberals and leftists to criticize rights advocated by conservatives and libertarians. However, it’s important to understand that the same ploy can easily be turned on rights favored by the political left. Consider, for instance, the right [...]
Justice Stevens’ dissent in Citizens United argues that corporations should have sharply reduced First Amendment rights, at least when it comes to speech about political candidates. The obvious response, which the majority makes at length, is that this would leave the government free to impose similar restraints on newspapers, magazines, broadcasters, and others, since nearly all of them are organized as corporations as well. (Congress has so far exempted most media corporations from these restrictions; but the argument that corporations have reduced First Amendment rights would suggest that these exemptions are just a matter of legislative grace, and that Congress could restrict media corporations if it wanted.)
Not so, argues the dissent (echoing the views of many commentators who support restrictions on corporate speech). “The press plays a unique role not only in the text, history, and structure of the First Amendment but also in facilitating public discourse” (p. 85). “The text and history [of the First Amendment] highlighted by our colleagues suggests why one type of corporation, those that are part of the press, might be able to claim special First Amendment status, and therefore why some kinds of ‘identity’-based distinctions might be permissible after all.” (P. 40 n.57.) More broadly, I’ve heard commentators argue, media corporations have nothing to fear from court decisions that treat the First Amendment as less protective of the rights of corporations, since media corporations have special protection under the Free Press Clause.
Yet why would that be so? If the Free Speech Clause doesn’t cover corporations (or doesn’t cover them as strongly), why should the Free Press Clause be read as strongly protecting corporations? Say the dissent is right that “there is not a scintilla of evidence to support the notion that anyone believed [the First Amendment] would preclude regulatory distinctions based on [...]
Others, such as senior Conspirator Eugene Volokh, are much better qualified than I am to comment on today’s important free speech decision striking down restrictions on campaign-related speech by corporations. I want to focus on the common claim that corporations aren’t entitled to free speech rights (and perhaps other constitutional rights) because they aren’t “real people.” That argument was reiterated in Justice John Paul Stevens’ dissenting opinion today:
Stevens hammers, more than once this morning from the bench on the principle that corporations “are not human beings” and “corporations have no consciences, no beliefs, no feelings, no thoughts, no desires.” He insists that “they are not themselves members of ‘We the People’ by whom and for whom our Constitution was established.”
It’s true, of course, that corporations “are not human beings.” But their owners (the stockholders) and employees are. Human beings organized as corporations shouldn’t have fewer constitutional rights than those organized as sole proprietors, partnerships, and so on. In this context, it’s important to emphasize that most media organizations and political activist groups also use the corporate form. As Eugene points out, most liberals accept the idea that organizational form is irrelevant when it comes to media corporations, which were exempt from the restrictions on other corporate speech struck down by the Court today. The Supreme Court (including its most liberal justices) has repeatedly recognized that media corporations have First Amendment rights just as broad as those extended to media owned by individuals. Yet the “corporations aren’t people” argument applies just as readily to media corporations as to others. After all, newspapers, radio stations, and TV stations “are not human beings” and they too “have no consciences, no beliefs, no feelings, no thoughts, no desires.” We readily reject this reasoning in the case of media corporations because [...]