The Citizens United decision serves as a galvanizing force in the ongoing movement to reduce the impact of wealthy individuals, associations and corporations in American politics and policy, but it’s important to understand that it’s really only part of the story. Citizens United was just one case in a long Supreme Court history of rendering decisions favorable to wealthy interests. On the five-year anniversary of Citizens United, when people all across the country are attempting to focus attention on the corrupting influence of money in our political process, we take a look back at many of the Supreme Court cases that have led us to this point in history.
The movement to amend the Constitution to abolish corporate constitutional rights and abolish the doctrine of treating the spending of money as a form of protected speech is about a lot more than just elections, super PACs and the fallout from Citizens United. It’s also about more than just corporate power and a government of, by and for a wealthy elite. Ultimately, this is about the makeup and priorities of the U.S. Supreme Court. As you read the list below, keep a few questions in mind: Who are these people? What experience do they have in the real world that most Americans live in? Who’s agenda do they serve? Are they, in fact, just as much an activist political body as the legislative and executive branches? And, if so, can we really believe that nine political appointees with lifetime tenures and Washington D.C. values are even capable of being the constitutional guardians we’re taught they’re supposed to be? Isn’t massive, wholesale Supreme Court reform long overdue?
Select Chronology of U.S. Supreme Court Cases Undermining Republican Democracy
March 19, 1888
Pembina Silver Mining Co. v. Pennsylvania
While the tendency is to mention Santa Clara County v. Southern Pacific Railroad, the “precedent” in that case was nothing more than the non-binding headnote written by Court reporter and former railroad executive Bancroft Davis. The majority in Pembina was quite explicit: “A private corporation is included under the designation of ‘person’ in the Fourteenth Amendment to the Constitution, section I.”
January 7, 1889
Minneapolis & St. Louis Railway v. Beckwith
The long and deliberate road to acquiring constitutional rights for corporations is well underway: “Corporations are persons within the meaning of the clauses in the Fourteenth Amendment to the Constitution concerning the deprivation of property, and concerning the equal protection of the laws.”
January 9, 1893
Noble v. Union River Logging Railroad Co.
The Fifth Amendment is now fully in play: “A revocation of the approval of the secretary of the interior […] by his successor in office, was an attempt to deprive the plaintiff of its property without due process of law, and was, therefore, void.”
April 17, 1905
Lochner v. New York
“The general right to make a contract in relation to his business is part of the liberty protected by the Fourteenth Amendment, and this includes the right to purchase and sell labor, except as controlled by the State in the legitimate exercise of its police power.”
March 12, 1906
Hale v. Henkel
“A corporation is but an association of individuals with a distinct name and legal entity, and, in organizing itself as a collective body, it waives no appropriate constitutional immunities, and, although it cannot refuse to produce its books and papers, it is entitled to immunity under the Fourth Amendment against unreasonable searches and seizures.”
March 16, 1907
Armour Packing Co. v. United States
All the Justices, the majority and the three in dissent, accept the premise that a corporation may claim the 6th Amendment right to trial by jury in the state or district in which an alleged crime has taken place. The claim is resolved by acknowledging that the transportation of goods across multiple districts renders the legal actions taken in any such district valid. The idea that a corporation cannot assert a Sixth Amendment claim at all doesn’t even enter into the minds of anyone on the case.
December 11, 1922
Pennsylvania Coal Co. v. Mahon
The Court ruled that whether a regulation constitutes a taking (eminent domain) depends on the diminution of the value of the property. The takings clause originally applied to the physical taking or seizing of property. This changed established precedent that the regulation of land was not a taking and was simply the use of the government’s police power to protect the community. This represents the first example of a loss of profit being equated with a taking under the Fifth Amendment.
March 13, 1933
Louis K. Liggett Co. v. Lee
“Corporations are as much entitled to the equal protection of the laws guaranteed by the Fourteenth Amendment as are natural persons.” (So, even though the Fourteenth Amendment was written to protect newly free blacks from white oppression, it is now fully acknowledged as the instrument by which corporations protect themselves from legislative “oppression,” a.k.a., regulation.)
February 10, 1936
Grosjean v. American Press Co.
“A corporation, we have held, is not a ‘citizen’ within the meaning of the privileges and immunities clause (Paul v. Virginia). But a corporation is a ‘person’ within the meaning of the equal protection and due process of law clauses, which are the clauses involved here.” (So the Fourteenth Amendment doesn’t apply, except when it applies. Makes perfect sense.)
January 31, 1938
Connecticut General Life Insurance Co. v. Johnson
“A corporation which is allowed to come into a state and there carry on its business may claim, as an individual may claim, the protection of the Fourteenth Amendment against a subsequent application to it of state law.”
[Dissent by Justice Black: “A constitutional interpretation that is wrong should not stand. I believe this Court should now overrule previous decisions which interpreted the Fourteenth Amendment to include corporations.”]
June 20, 1949
Wheeling Steel Corp. v. Glander
“The tax denied the foreign corporations the equal protection of the laws, in violation of the Fourteenth Amendment of the Federal Constitution.”
[Dissent by Justice Douglas, Justice Black concurring: “It may be most desirable to give corporations this protection from the operation of the legislative process. But that question is not for us. It is for the people. If they want corporations to be treated as humans are treated, if they want to grant corporations this large degree of emancipation from state regulation, they should say so. The Constitution provides a method by which they may do so. We should not do it for them through the guise of interpretation.]
March 19, 1962
Fong Foo v. United States
The Court applies the double-jeopardy provision of the Fifth Amendment to a corporation for the first time, even though the original verdict was rendered in an improper way by a court that did not have the authority to make the type of summary judgement it came to.
June 5, 1967
See v. City of Seattle
A commercial property may not be inspected by city agencies, even for the long-established purpose of public health and safety protection, without a warrant. Fourth Amendment search and seizure protection extended to commercial property.
February 2, 1970
Ross v. Bernhard
The Seventh Amendment guarantees the right to a jury trial in stockholders’ derivative actions in which the corporation would be entitled to a jury trial (which was granted to corporations by Court interpretation, not by the Constitution).
January 30, 1976
Buckley v. Valeo
The Court upheld a federal law which set limits on campaign contributions, but ruled that spending money to influence elections is a form of constitutionally protected free speech, and struck down portions of the law.
“A restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached. This is because virtually every means of communicating ideas in today’s mass society requires the expenditure of money. The distribution of the humblest handbill or leaflet entails printing, paper, and circulation costs. Speeches and rallies generally necessitate hiring a hall and publicizing the event. The electorate’s increasing dependence on television, radio, and other mass media for news and information has made these expensive modes of communication indispensable instruments of effective political speech.”
April 26, 1978
First National Bank of Boston v. Bellotti
In the majority opinion, Justice Lewis Powell ruled that a Massachusetts criminal statute prohibiting the expenditure of corporate funds for “influencing or affecting” voters’ opinions infringed on corporations’ “protected speech in a manner unjustified by a compelling state interest.”
May 23, 1978
Marshall v. Barlow’s, Inc
The Court held that a provision in the Occupational Safety and Health Act (OSHA) that permitted inspectors to enter premises without a warrant to inspect for safety hazards and violations of OSHA regulations violated the Fourth Amendment.
June 20, 1980
Central Hudson Gas & Electric Corp. v. Public Service Commission
“A regulation of appellee New York Public Service Commission which completely bans an electric utility from advertising to promote the use of electricity violates the First and Fourteenth Amendments.”
February 25, 1986
Pacific Gas & Electric v. Public Utilities Commission
Fifth Amendment protection from being compelled to be a witness against itself is extended to corporations.
“For corporations as for individuals, the choice to speak includes within it the choice of what not to say.”
December 15, 1986
Federal Election Commission v. Massachusetts Citizens for Life
Upheld a lower court decision that overruled the FEC’s enforcement of a provision of the Federal Election Campaign Act that prevented corporations from using general treasury funds for electioneering purposes, reinforcing the Court-created doctrine of spending money as a form of protected First Amendment speech.
August 8, 1996
International Dairy Food Association v. Amestoy
Corporations do not have to comply with regulations requiring disclosure of the contents of the products they sell to the general public.
“The right not to speak inheres in political and commercial speech alike and extends to statements of fact as well as statements of opinion.”
(Amazing that nutrition labeling requirements, from groceries to fast food restaurants, haven’t already been struck down.)
June 25, 2007
Federal Election Commission v. Wisconsin Right to Life, Inc.
The beginning of the end for the Bipartisan Campaign Reform Act (BCRA)–aka, McCain-Feingold. “Express advocacy” of a candidate means a literal and explicit advocacy for or against a particular candidate by name, and anything that is less than explicit, even a strong implication, for instance, does not meet the standard and, therefore, does not violate the BCRA. Because the BCRA limits the scope and protections of the First Amendment (which, by the Court’s interpretation is defined as limiting the spending of money), the FEC must face “strict scrutiny” in its enforcement of the provisions of the BCRA.
January 21, 2010
Citizens United v. Federal Election Commission
The Court held that the First Amendment prohibited the government from restricting independent political expenditures by corporations and unions. The decision overruled Austin v. Michigan Chamber of Commerce and partially overruled McConnell v. Federal Election Commission, two cases that had upheld campaign finance regulations in the past.
“Austin is overruled, and thus provides no basis for allowing the Government to limit corporate independent expenditures. Hence, §441b’s restrictions on such expenditures are invalid and cannot be applied to Hillary. Given this conclusion, the part of McConnell that upheld BCRA §203’s extension of §441b’s restrictions on independent corporate expenditures is also overruled.”
June 23, 2010
Arizona Free Enterprise Club v. Bennett
“Arizona’s matching funds scheme, which provides additional funds to a publicly funded candidate when expenditures by a privately financed candidate and independent groups exceed the funding initially allotted to the publicly financed candidate, substantially burdens political speech and is not sufficiently justified by a compelling interest to survive First Amendment scrutiny.”
June 25, 2012
American Tradition Partnership, Inc. v. Bullock
The hundred-year tradition of preventing corporations from influencing state election in Montana goes down in the flames of Citizens United.
“The question presented in this case is whether the holding of Citizens United applies to the Montana state law. There can be no serious doubt that it does. […] Montana’s arguments in support of the judgment below either were already rejected in Citizens United, or fail to meaningfully distinguish that case. The petition for certiorari is granted. The judgment of the Supreme Court of Montana is reversed.”
April 2, 2014
McCutcheon v. Federal Election Commission
Strikes down limits on aggregate federal campaign contributions, while keeping individual limits in place. This enables wealthy donors to give the maximum amount–$2,600–to every candidate in the country. As with most mixed rulings of this type, why the Court majority found a compelling case to overturn one limit but not another is perplexing, to say the least.