Citizens United v. FEC: Time for a Free Speech for People Amendment?

January 20, 2010

Jeff Clements American Constitution Society Blog Jan 21 2010

Today in a 5-4 decision in Citizens United v. FEC, the Supreme Court held that the American people are powerless to stop corporations from using corporate funds to influence state and federal elections. Overruling McConnell v. FEC, decided only six years ago and Austin v. Michigan Chamber of Commerce, the Court held that the restrictions on corporate expenditures in elections contained in the federal Bipartisan Campaign Reform Act violated First Amendment protections of free speech. In effect, the majority decision (Justice Anthony Kennedy, joined by Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito) equates corporations with people for purposes of free speech and campaign expenditures.

This is an extraordinary ruling unhinged from traditional American understandings of both the First Amendment and corporations. Indeed, Justice John Paul Stevens' dissent calls the majority opinion a "radical departure from what has been settled First Amendment law."

In Austin and McConnell, the Supreme Court had ruled that Congress and the States may regulate corporate political expenditures not because of the type of speech or political goals sought by the corporation but because of the very nature of the corporate entity itself. Today, Citizens United sweeps those decisions aside, resting partly on Justice Kennedy's assertion that "Corporations and other associations, like individuals, contribute to the ‘discussion, debate, and the dissemination of information and ideas' that the First Amendment seeks to foster." It is an assertion that Justice Stevens, in his dissent, blasts as a "glittering generality."

The notion that corporations are equivalent to "other associations" is a fundamental error that would get a law student in trouble. Corporations simply do not exist unless we enact laws that enable people to organize a corporation and provide the rules of the road for using a corporation. We all can start and run businesses without government involvement or permission; we can form non-profits and associations and unions and political parties and all kinds of groups without the government. But we simply cannot form or operate a corporation unless the state enacts a law providing authority to form a corporation, and providing the rules of the road that go with use of the corporate form. Advantages of corporations are a privilege provided by government.

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