Citizens United vs. F.E.C.

Karl Hailperin

Last Thursday the Supreme
Court advanced the cause of
free political speech when it
handed down its 5-4 ruling in
Citizens United v. Federal Election
Commission, an important case
involving a provision of the
Bipartisan Campaign Reform Act
of 2002 banning independent campaign
advertisements by corporations
and unions in the days before
an election.
The majority opinion, authored
by Justice Kennedy, struck down
this provision on the grounds that
“If the First Amendment has any
force, it prohibits Congress from
fining or jailing citizens, or associations
of citizens, for simply
engaging in political speech.”
The case raised some thorny
legal issues because it held that
the “freedom of speech” protected
by the First Amendment covered
not just the political speech of
individual citizens, but that of corporations.
What about Justice Stevens’
claim in his dissent that the
First Amendment does not apply
because corporations “are not
human beings” and therefore
their speech is not entitled to First
Amendment protection? The flaw
with that reasoning is that corporations
are not distinct entities in
and of themselves, but “associations
of citizens” – workers, managers,
investors, etc. – organized
together through a specific legal
and contractual arrangement.
Corporations do not speak;
people speak in their role as a
corporate actor. Therefore the
question is not “Do corporations
have a right to free speech?” but
“Are citizens’ right to free speech
suspended when they organize
in a corporation?” Nothing in the
text of the Constitution supports
answering that question with a
The Court has well-established
precedents that upheld the First
Amendment rights of corporations,
specifically New York Times
Co. v. Sullivan, decided in 1964,
and New York Times Co. v. United
States, decided in 1971.
Admittedly both of those
cases dealt with freedom of press rather than freedom of speech, but there is no good reason to believe that some but not all of the rights of the First Amendment apply to corporations. The best case one could make is that “the press” in the First Amendment was meant to refer to the industry, and therefore corporations that are part of that industry are protected.
However, according to UCLA School of Law professor and legal blogger Eugene Volokh, “the press” refers to printing technology and was viewed “not as a right that belong to members of a particular industry.”
True, the Court also had precedents upholding that provision, among others, of the BCRA – McConnell v. FEC in 2003 – and similar state-level restrictions – Austin v. Michigan Chamber of Commerce in 1990 – both of which were overturned by Citizens United, although the portions of McConnell unrelated to the independent expeditures were left untouched.
The basic reasoning behind those rulings was that the accumulation of wealth made possible by access to the corporate form provided, in the words of the Austin ruling, “an unfair advantage in the political market place.”
However, as Justice Kennedy pointed out, “the State cannot exact as the price of those advantages the forfeiture of First Amendment rights,” a legal doctrine know as the unconstitutional conditions doctrine.
As a result, the existing differential treatment of corporate political speech and individual political speech was irreconcilable with the rest of the Courts’ holdings. Either the Supreme Court had to uphold the provision of BCRA and keep the muddled, inconsistent status-quo or it could use the throw out the poorly-reasoned precedents while keeping the properly decided ones. The court rightly chose the second course of action.