Theresa O’Connor

Citizens United v. Federal Election Commission

This is the text of an email I sent to a private mailing list the other day.

My gut reaction on CU v. FEC is similar to Will Wilkinson’s (emphasis his):

This was a case about whether the state can suppress the distribution of an unflattering documentary about a powerful political candidate produced by a small group of private citizens. The crazy thing to me is that anyone ever thought that such a rule was not in blatant violation of the First Amendment.

The basic argument is: individuals have the rights of association, free speech, and the freedom of the press. A corporation is simply a form that such free association can take, and so you can’t deny individuals (shareholders) their rights simply because they’re acting in corporate form.

Of course, when people talk about this being an issue of undue corporate influence over politics, I think they really mean some corporations as opposed to some other corporations. I don’t think such a division can usefully be maintained. As Timothy Lee says,

Second, I think it’s important to remember that “corporations” encompass much more than large, for profit businesses. They also include a wide variety of non-profit and advocacy groups, including groups like the ACLU, the NRA, and NARAL that are, by any reasonable definition, grassroots organizations advocating the views of large numbers of voters. Indeed, as the ACLU pointed out in its amicus brief, the Bipartisan Campaign Reform Act (BCRA) prohibited the ACLU from running ads criticizing members of Congress who voted for the awful FISA Amendments Act of 2008. Even if you think it’s appropriate for Congress to regulate the speech of Exxon-Mobil and Pfizer, I think it’s awfully hard to square the First Amendment with a law that limits the ability of NARAL or the NRA to advocate for its members’ views.

Now, you could try the tack that such organizations are protected via the Free Press clause, that the freedom of the press applies to some corporations (media outlets) and not other corporations (Exxon and the like). I think this is a misinterpretation of the freedom of the press. Eugene Volokh wrote a good post about this. Here’s his conclusion:

[Early US court cases] do show that “liberty of the press” was seen as a right to publish to the world at large using the technology of the “press” (including by using others’ presses, whether for pay or because they liked what you wrote), not as a right that belonged to members a particular industry. The institutional media and other people are on par for purposes of “the freedom of speech, or of the press.” The constitutional protections offered to the institutional media are no greater than those offered to others. And thus if ordinary business corporations lack First Amendment rights, so do those business corporations that we call media corporations.

Anyway, I think it’s interesting to see usually like-minded people have such different gut reactions to this case. Such differences could be explained by different base Constitutional theories as suggested by John Samples (quoted by Will), but I don’t think he gives the progressive position enough credit. Later in the same post Will tries to articulate the progressive position as best he can; do you think he does it justice?