This post follows-up on today's historic -- and frightening -- Supreme Court decision (see here).
Persons and corporations are different, explains Justice Stevens,* a distinction that seems lost on the majority. Justice Stevens, in his dissenting opinion, points out that although it's relatively easy to identify whether or not a person is an American or a foreigner, the distinction is gets fuzzy with respect to corporations.
.In the context of election to public office, the distinction between corporate and human speakers is significant. Although they make enormous contributions to our society,corporations are not actually members of it. They cannot vote or run for office. Because they may be managed and controlled by nonresidents, their interests may conflict in fundamental respects with the interests of eligible voters. The financial resources, legal structure,and instrumental orientation of corporations raise legitimate concerns about their role in the electoral process. Our lawmakers have a compelling constitutional basis, if not also a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races.A corporation may be foreign, domestic, or multinational. Why should the court have granted these entities have the same political rights as American citizens? Stevens writes:
If taken seriously, our colleagues’ assumption that the identity of a speaker has no relevance to the Government’s ability to regulate political speech would lead to some remarkable conclusions. . . . . pertinently, it would appear to afford the same protection to multinational corporations controlled by foreigners as to individual Americans: To do otherwise, after all, could “ ‘enhance the relative voice’ ” of some (i.e., humans) over others (i.e.,non humans). Ante, at 33 (quoting Buckley, 424 U. S., at49).51 Under the majority’s view, I suppose it may be a First Amendment problem that corporations are not permitted to vote, given that voting is, among other things, a form of speech.Stevens says the 5-4 vdecision marks a dramatic break with past rulings:
In short, the Court dramatically overstates its critique of identity-based distinctions, without ever explaining why corporate identity demands the same treatment as individual identity. Only the most wooden approach to the First Amendment could justify the unprecedented line it seeks to draw.
The majority’s approach to corporate electioneering marks a dramatic break from our past. Congress has placed special limitations on campaign spending by corporations ever since the passage of the Tillman Act. . . .We have unanimously concluded that this [the Tillman Act] “reflects a permissible assessment of the dangers posed by those entities to the electoral process,” . . . and have accepted the “legislative judgment that the special characteristics of the corporate structure require particularly careful regulation,” . ... The opinion of STEVENS, J. Court today rejects a century of history when it treats the distinction between corporate and individual campaign spending as an invidious novelty. . . Relying largely on individual dissenting opinions, the majority blazes through our precedents, overruling or disavowing a body of case law. .. .Stevens writes the footnotes:
- "The majority never uses a multinational business corporation in its hypotheticals."
- "In state elections, even domestic corporations may be “foreign”- controlled in the sense that they are incorporated in another jurisdiction and primarily owned and operated by out-of-state residents."
What is to prevent agents of foreign powers -- Saudis, Iranians, Russians, or Chinese -- from using corporations as a means of buying favorable American election outcomes? Policies that favor foreign industries? Maybe posing this question will wake Americans up to what has happened today.
Obama and the present Congress may be the last occupants of these institutions not entirely beholden to corporations.
Two other Jotman posts concern Justice Steven's dissenting opinion:
- How are persons different than corporations?
- Did the framers of the US Constitution believe corporations should have free speech?
*Opinion of STEVENS, J.SUPREME COURT OF THE UNITED STATES No. 08–205 CITIZENS UNITED, APPELLANT v. FEDERALELECTION COMMISSIONON APPEAL FROM THE UNITED STATES DISTRICT COURT FORTHE DISTRICT OF COLUMBIA[January 21, 2010]JUSTICE STEVENS, with whom JUSTICE GINSBURG,JUSTICE BREYER, and JUSTICE SOTOMAYOR join, concurringin part and dissenting in part.
UPDATE: Politico's Gerstein has written an article addressing the question raised in this post.