Tuesday, September 22, 2009

The Supreme Court on Corporations: Citizens United vs. the FEC

The current case of Citizens United vs. the FEC, the Supreme Court is confronting one of the most foundational constitutional issues since Brown vs. Board. Despite all of the angles taken by the plaintiffs and justices about fair elections, the role of money in politics, and the purient interests of government to make rules in regards to free speech; the one that matters most is the most taken for granted: does the bill of rights apply to corporations sui generis? My answer, as I will elaborate below, must be no; but I will consider the implications if the court decides it does.

The core rule driving the debate is that it is currently illegal for corporations to spend money on "electioneering communications" (meaning "an appeal for a vote for or against a specific candidate"). The rationale for the challenge is whether or not Hilary: the Movie is such a communication and advertisement, and whether or not the rules of enforcement are overly burdensome. (See Cornel Law for a full but short overview.) At face value, these claims are very different from the arguments being made to the Supreme Court and, frankly, this case could technically be solved without any major change in statute. However, the Appelant and thus the court and Appelee (Citizens United) have focused the issue on whether or not the law against electioneering communications is constitutional by way of arguing that free speech protections apply to corporations. Listen to the arguments at NPR , read the Citizens United brief (pdf), read the FEC's brief (pdf).

The question of whether electioneering communications are unconstitutional stems directly from the interpretation of who (and now what) the first amendment applies to. Scalia makes the argument that 95% of corporations are small business “indistinguishable from the individual who owns them.” Ginsberg's take is that corporations are not "endowed by their creator with inalienable rights" and raises the additional issue of corporations partly owned by non-citizens (see re-examination available on NPR or secondary news source).

While these touch the core issue of the application of the first amendment, they do not touch on the legal basis of corporations - which are not mentioned in the constitution and are pure legislative constructs from a legal point of view. Corporations are, in a legal sense, only what legislatures say they are and are not, and only a constitutional amendment can override that.

While I will ignore convenient arguments about judicial activism and rewriting the Constitution, the basic question is whether or not the Bill of Rights applies to corporations and the answer is a potential watershed moment in our history. Let's go into some of the potential implications. First, to extend the right of free speech to corporations subverts any rules on what can be seen on television or expressed in any other media except for what is already proscribed for individuals (including language, sexual content, violence, drug-makers' claims about a new drug, etc.).

Second, the peaceably assemble clause of the first amendment could also be used to severly limit laws on how corporations can be organized and run. For example, if a corporation's plant is shut down for sweatshop practices, the government can be taken to court for preventing peaceful assembly. Other such practices may include certain types of price fixing, cartel formation, and any scale of merger. Free market supporters who may not have a problem with the first and second implications should not forget that they would imply that we lose the ability to control monopolies and whatever their impact on government and politics more generally.

Lastly, the notion of voting rights also comes to the table if corporations are treated as people. While the idea that corporations would themselves have a vote is a constitutional stretch of cosmological proportion, to rule that corporations must be treated as people under the constitution raises these issues directly.

I don't mean to come off as a sensationalist about this ruling, but these issues become new fundamental questions with potentially history-changing impacts if the Supreme Court so rules. Of course, if the majority opinion does not base its finding on the notion that corporations are people, none of this matters nearly as much.

My guess is that the ruling will be overturned (Citizens United wins) because the law itself is too broad to defend the purient interest, the argumentation supporting the purient interest has been poorly defended over the course of the case (in large part because it is strapped by overbroad wording), and the right-leaning court is just not gonna hear it. However, such a blatant endorsement of the corporate personhood position will likely be found in an assenting opinion, but not the majority opinion (thus giving it credence without necessarily the force of Supreme Court interpretation); while the dissenting opinion will opine the view as it really supports the majority opinion and offer suggestions on how to regulate corporate money in campaigns given the majority interpretation.

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