The Citizens United decision is the worst. I, for one, firmly believe that it is the most problematic judicial precedent standing today, and a vast majority of people all across the political spectrum agree. Yet, thanks to the mainstream media and our politicians, too few understand what this case actually does to our political and electoral systems. Simply put, everything you know about Citizens United is probably wrong.
YOU’RE PROBABLY WRONG
In this case, the Supreme Court split five to four on the questions of (1) whether corporations are people and (2) whether money is speech, with the majority answering both in the affirmative. Right?
Wrong. Everything you think you know about this case is simply incorrect.
All nine Justices agreed that money is speech and that corporations are people. All. Nine.
Yet, we know that the case split the Court five to four. So, if all nine Justices agreed on those two questions but were nonetheless divided overall, what actually happened?
The answer is incredibly problematic, yet, before diving into it, those two now-familiar concepts—money as speech and corporations as people—need to be explored. Only then can one truly appreciate the campaign finance question that has actually split the Court. Finally, discussions about the Obama administration’s role in the case and about why all of this matters are essential pieces of the puzzle.
MONEY AS SPEECH
All nine Justices, including those liberal heroes Stevens and Ginsburg, hold that spending money on political expression is speech protected by the First Amendment. Furthermore, Citizens United was not the first case to reach this conclusion, and every single Supreme Court Justice confronted with the question answered it in the affirmative.
Let’s explore why. First of all, note that we’re not talking about spending money on just anything. We’re talking about spending money on political expression. Further, the First Amendment applies with the most strength in political contexts. Therefore, to say something like “if money is speech, then prostitution has to be legal” is a huge leap in logic.
Now let’s go deeper. What exactly is speech? Pure speech, for sure—talking out loud. How about painting the words “Citizens United Sucks!” on a sign and going to a protest? Sure, the message on your sign isn’t pure speech, but it’s still language and words, so the First Amendment protects that too. What about giving someone the thumbs up? Yeah, it’s not pure speech, and yeah, there aren’t any words, but everyone knows what you’re trying to say. Should the government be able to ban thumbs up? Of course not; the First Amendment protects that as well. Alright, but how about wearing a bright yellow shirt? I mean, maybe there’s no language involved, and maybe the message isn’t immediately apparent to people who see the shirt, but you really like the color, so you should be able to express yourself that way, right? The answer: you bet, and the First Amendment has your back.
You see what I’m getting at here? The First Amendment says “speech,” but it is interpreted much more broadly to mean “expression.” This is exactly why all nine Justices agree that spending money for political expression is speech protected by the First Amendment. When you donate your hard-earned dollars to a political campaign, the expression is clear: I support this person, this group, this idea. And guess what? It’s not just your donations that are protected, either. The First Amendment protects your ability to spend money on all those materials you need to make your “Citizens United Sucks!” signs too.
Now, about those corporations . . .
CORPORATIONS AS PEOPLE
All nine Supreme Court Justices on the bench for the Citizens United case agree that, at least to some extent, corporations must be treated like people for constitutional purposes. Further, like “money is speech,” this was not even close to the first case to reach this conclusion.
Once again, let’s explore why. Corporations are not literal people, yet, at least to some degree and for constitutional purposes, they are treated the same. There are two main reasons for this fact. First, the Constitution says that the government can’t deprive you of “life, liberty, or property” without due process of law. This means they can’t just up and take your stuff, your life, or your freedom on a whim. If you’re a business owner, it’s nice to know that you as an individual are protected, but, if the government can do all that stuff to your business, small good the individual protection does you—and I think most of us would agree that it would hardly be fair for the United States government to shut down Apple for no reason other than the president doesn’t like Steve Jobs’ political views. This does not mean that the government can never seize a business; it means that it has to have a good reason for doing so.
Still, there’s an even more fundamental reason why the law treats corporations as people, and this second one overlaps with the first. And yes, here, we go back to the First Amendment.
The amendment doesn’t just talk about speech. It says some stuff about religion, about freedom of the press, about freedom to petition the government, and about freedom of association. The freedom of association protects your right to get together with other people towards a common goal: a book club, a political action committee, and—yes—a business, to name a few. Corporations are examples of people exercising their rights of association by banding together towards a common profit-making enterprise. Yet, it’s not enough that the literal people themselves have this right; if the right is to mean anything, then the association itself must be protected too. Otherwise, the government could break up your book club and say “I’m not violating your individual rights of association—it’s just that your book club doesn’t have any rights at all.”
These are the two reasons why all nine Justices on the Citizens United Court agree that, at least to some degree and for constitutional purposes, corporations must be treated like literal people. And, now that we understand the legal rationales for treating money as speech and corporations as people, it’s time to turn to a different question. What actually split the Court five to four?
The five to four split in the Citizens United case was on the definition of “corruption.” More specifically, the Court divided on a question with two inter-related parts: (1) what is the corruption (2) that campaign finance laws prevent?
Chief Justice Roberts and Justices Scalia, Thomas, Alito, and Kennedy gave a simple answer to this question: quid pro quo bribery. I repeat, for emphasis. Five Justices hold that the only type of corruption we can stop with campaign finance restrictions is a donor giving a candidate money in an explicit exchange for a particular vote or decision—quid pro quo bribery, or “I’ll give you X dollars for Y vote.”
Justices Stevens, Ginsburg, Breyer, and Souter disagreed. They defined the type of corruption preventable by campaign finance regulations much more broadly than quid pro quo bribery. Their definition included peddling influence and distorting the political process.
Legally, why does this matter, and how does it play out? In other words, why does the Constitution care how we define the type of corruption that campaign finance laws prevent?
Simply put, though the First Amendment protects the right to spend money on political expression, the amendment also allows the government to infringe upon this right when doing so prevents corruption. And, the more broadly we define corruption, the more room there is to regulate the money before running afoul of the First Amendment.
Step by step, this is how the legal analysis goes. We start with our speech, and we know from above that the speech at stake is the money—dollars spent on political expression, thereby protected by the First Amendment. As the freedom of expression is one of our fundamental rights, any law infringing upon it has to be targeted to prevent a specific, serious harm. If the law prevents anything more than a specific, serious harm, then it is overbroad and unconstitutional, as it infringes upon our fundamental right more than is necessary.
An example. The government can pass an Act making it illegal to shout “FIRE!” or “BOMB!” in a crowded theater, even though doing so infringes upon the freedom of speech, as laws like this prohibit people from saying certain things in a particular context. It’s okay to do this because the havoc that ensues when someone screams these words in this place is a serious, specific harm. Further, this serious, specific harm can easily be prevented by prohibiting people from crying these words in these locations. Therefore, the First Amendment is okay with the government infringing, in this way and for this reason, upon the amendment’s own protections. However, if the law makes it illegal to shout anything in a crowded theater, then the law is overbroad and unconstitutional, because even though “anything” includes “FIRE!” and “BOMB!” it also includes a lot of other words that do not cause a serious, specific harm.
Now bring it back to money in politics, and everything is crystal clear. The serious, specific harm at issue is corruption. Therefore, to know which campaign finance restrictions are constitutional and which are overbroad, we need to actually define corruption. Five Justices defined the type of corruption preventable by campaign finance restrictions as quid pro quo bribery. And, because the law at issue in Citizens United prevented more than quid pro quo bribery, those five Justices ruled it unconstitutional.
The other four Justices disagreed, and, in their dissent, they defined “corruption” as something akin to influence peddling and distorting the political process. They also disagreed on the degree to which the Constitution should treat corporations like literal people, and it was with respect to the definition of corruption where those disagreements were important. The reason the previous sentence is true is because the differences between literal people and corporations—like potentially eternal existence and far greater access to resources—open the door for a much wider variety of corruption. And, because these Justices defined the corruption preventable by campaign finance laws much more broadly, their dissenting opinion left a lot more room for the government to restrict money in politics without running afoul of the First Amendment.
In 1990, the Supreme Court decided a campaign finance case called Austin v. Michigan Chamber of Commerce. Austin is the case that Citizens United overruled. In it, former Chief Justice William Rehnquist, a staunch conservative, joined Justices Marshall, Brennan, White, and Blackmun in upholding campaign finance restrictions like the ones that Citizens United struck down.
The Austin majority defined “corruption” in more or less the same way that the Citizens United dissenters did. Thus, the Austin majority held that, though the campaign finance restrictions at issue did indeed infringe upon corporations’ constitutional right to spend money on political expression, the infringement was not unconstitutional because the law targeted a specific, serious harm: corruption, broadly defined as peddling influence and distorting the political process. In other words, in Citizens United, four Justices voted to uphold Austin, and five Justices voted to overturn it.
As Citizens United was a case challenging a federal statute before the United States Supreme Court, the Obama administration’s Solicitor General was tasked with defending the law. And, seeing as the Supreme Court already had the Austin precedent on the books—a case that had already answered the questions presented in Citizens United—it stood to reason that the Solicitor General was going to brief and argue in favor defining “corruption” the same way that the Austin majority did.
If you know that four of nine Justices are receptive to a particular argument, and that argument favors your position, then you make that argument, period. Especially when that argument is already the law. Even if the other five don’t agree with it, you still make the argument. You make the argument to provide the four with ammunition. You make the argument to paint a complete picture for the Court as a whole. You make the argument to refine the argument itself, utilizing the experience gained since the argument first became law. You make the argument because it is law and because four Justices want to hear it. This is so incredibly obvious, and you don’t need to pass the bar to see why.
So the Obama administration made the argument, right? The Solicitor General defended the Austin definition of corruption, right?
Wrong. The administration completely abandoned Austin. The president gave it up without a fight.
This was a mistake of such epic proportions that you have to wonder whether the Obama administration actually wanted to win the case. Remember, both political party establishments—and their affiliated organizations—benefit immensely from the virtually unfettered Super PACs that the Citizens United ruling mandates.
OVERTURNING THE PRECEDENT
If you’re sitting there thinking “if we can all agree that the case and the effect it has sucks, who gives a damn about the specifics,” then I can’t say I blame you. Still, understanding what actually happened in this case is incredibly important, for a very good reason.
As long as people are holding up signs that say “Money isn’t speech!” and “Corporations aren’t people!” the case is never going to be overruled. Though there is a good chance that this case goes the way of Plessy v. Ferguson, it’s never going to happen unless the public attacks it the right way.
Why is that, you ask? Simple.
One thing above all else sets the Supreme Court apart from Congress and the president: the Court acts retroactively. Courts do not make decisions in the abstract; rather, they wait until they have an actual dispute in front of them, so that they can interpret the law in accordance with concrete facts. And what were the concrete facts in Citizens United? Well, to five Justices, the facts were that corruption means quid pro quo bribery and nothing else.
To have any hope of overturning this precedent, lawyers need to acquire more evidence proving that corruption is actually something a lot more than quid pro quo bribery. Every single person can help provide it. We just need to be asking the right questions first. In other words, when I say that everything you know about Citizens United is probably wrong, what I mean is that we need to recognize that the case has much less to do with money as speech and corporations as people than it does with the definition of corruption. Though it would take constitutional amendments to do away with “money is speech” and “corporations are people,” it would only take one good case in court to overturn this precedent.