Citizens United was “the most misguided, naive, uninformed, egregious decision of the United States Supreme Court I think in the 21st century.”
~~Senator John McCain
There are four primary considerations (legal precedents) that came together in Justice Kennedy’s opinion in the Citizens United case that set off the slow motion, corporate take-over of our Republic. These were 1st Amendment rights of corporations, the doctrine that money is speech from the 1976 decision Buckley v Valeo, the Court’s usurping of Congress’ power and a fairly recent change in the Court’s application of the 1st Amendment.
The SCOTUS did not grant personhood to corporations or any Constitutional rights to corporations in the Citizens United ruling. Corporations already had 1st Amendment rights that were granted by five justices in 1976. What the Court granted corporations in this decision was the freedom to use those rights in elections.
Corporations are not so much exercising the freedom of speech in the current political environment as they are contributing disclosed money to superPACs and undisclosed money to associated 501 (c) 4 corporations (established explicitly to hide these contributions from the public). Because of the Buckley v Valeo decision of 1976, when the Court proclaimed that money is a form of speech and therefore cannot be regulated, these contributions are understood by Kennedy as synonymous with speech.
That ruling in 1976, where the SCOTUS deemed money to be a form of speech was not based upon any Constitutional principle or court precedent. That decision is called judicial activism or what conservatives call “legislating from the bench” which they seem to complain about only when the ruling is a liberal one. The plutocrats must have celebrated this bit of blatant judicial activism.
However, something even more pernicious began with that decision. According to Article I, Section 4 of the Constitution, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Place of Chusing Senators.” Buckley began the strategy of corruptly usurping the Congressional power to regulate the manner of elections. Buckley, First National Bank of Boston v Bellotti, Citizens United and the more recent Arizona Free Enterprise v. Bennett decisions were not only cases of judicial activism; properly understood, they convey that the Court’s conservative justices are exercising the power to regulate elections which the framers did not provide for the Court. The Court’s role is to rule on the Constitutionality of laws; what they have been doing for the last 36 years has been unconstitutional itself! Unfortunately, there is no court in place to rule on the Supreme Court’s ruling besides the court of public opinion. Only the people can reverse this dangerous usurping of Congressional power by demanding the Constitution be amended to put the Court in its proper Constitutional role, i.e., out of regulation of elections.
Finally, the Court used a relatively new interpretation of the 1st Amendment to rationalize the participation of corporations, and virtually any other source of speech/money. This understanding is derived from a piece published on the progressive Truthout online magazine by Occupy activist and patent lawyer, James Marc Leas as follows:
Expressly following the approaches taken in these two cases, the court broke no new ground in Citizens United when it ruled that:
Voters must be free to obtain information from diverse sources in order to determine how to cast their votes.
When Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves.
Thus, in Citizens United, the Supreme Court continued to articulate a theory of speech that underlies all the court’s decisions allowing money into politics. What was novel in Citizens United was not anything remotely related to corporate personhood, but the court’s expansion of the theory it provided in Bellotti from referendum questions to electioneering for candidates. In both cases, the court defined freedom of speech as protected by the First Amendment from the perspective of the listener, rather than of the speaker. The court held that the listener had the right to listen to all sources, whether the sources be corporations, partnerships, other business entities, individuals, associations or nonprofits. The court relied on the phrasing of the First Amendment to rule that Congress could not abridge “freedom of speech” in the abstract, irrespective of the source of the speech or the rights – or absence of rights – of the speaker.
The court could not have made any clearer that the right it defined has nothing to do with the “personhood” of the speaker, the source of the money for the speech or the rights of the source of the money. Citizens United and four other cases were decided after 2006, when pro-corporate justices, led by Chief Justice John G. Roberts, reached a majority of five on the Supreme Court. In these cases, the court combined the “money is speech” theory of Buckley with the “furthering free and open debate” analysis provided for referendum questions of Bellotti to usher unlimited corporate money into electoral politics. Thus, the Roberts 5 employed the more easily defensible abstract “open debate” basis for providing unlimited private money in elections that was created decades earlier, far removed from any reliance on the questionable idea of corporate personhood doctrine and any questions of whether corporations have the same rights as people.
Many may be surprised to learn that no federal campaign finance law has ever been struck down by the Supreme Court on grounds of “corporate personhood” or any kind of corporate rights. The court has consistently hinged its decisions on the First Amendment rights of the listener to hear all sources of the free and open debate and of society to enjoy an abstract “freedom of speech” disconnected from the identity of the speaker. [all emphasis added]
Leas’ entire piece has been addressed previously here, but his point about the Court’s “novel” expansion of their understanding that the 1st Amendment is applicable to the listener rather than just the speaker is spot on. Remember, this amendment states that “Congress shall make no law…abridging the freedom of speech….” However, the Court has upheld limits on this freedom. People do not have the “freedom” to hear someone yell “FIRE” in a crowed theater when there is not fire, and the Court has drawn lines denying the freedom of Americans to listen to foreigners and terrorists in our elections. (They have not addressed the fact that many corporations are at least partially owned by foreigners.)
To date, there has not been an amendment proposed to address this twisted, relatively new interpretation of the 1st Amendment. Perhaps one is not needed. Perhaps there is nothing inherently wrong with this theory of speech, but it is one of the four primary legal precedents that came together in the reactionary Citizens United decision that has granted corporations and plutocrats the freedom to buy Congress, the White House and by extension the Supreme Court.
Only the American people can fix this problem by pushing Congress to amend the Constitution to end 123 year series of Court decisions granting corporations the rights of humans, to end the false doctrine that money is speech, to return the power to regulate elections to Congress and, if deemed necessary and wise, to affirm that the freedom of speech is for people speaking or writing, not for those listening or reading. The alternative is a new Republic that we’ll necessarily call the United Corporations of America.