In today’s Washington Post, under the headline “The High Court’s Shoddy Scholarship,” Ruth Marcus accuses the Citizens United majority of, well, “shoddy scholarship,” and also “stunning… intellectual dishonesty.” I won’t accuse Ms. Marcus of “intellectual dishonesty” herself, because I know Ms. Marcus a bit and don’t think she is intellectually dishonest. But I do attribute her column to intellectual ignorance.
Let’s look at her accusations, one by one:
1. “It was unnecessary for the court to go so far when there were several less-radical grounds available.”
This sentence implies that Ms. Marcus thinks that the Court’s ultimate judgment was correct, i.e., that Citizens United should have been allowed to distribute its film, Hillary: The Movie, prior to the 2008 primaries, but only that the Court didn’t need to go so far as to overrule Austin v. Michigan Chamber of Commerce and strike down the ban on corporate expenditures. But if that is so, why did none of the dissenters find such a “less radical” ground for upholding Citizens United’s right to distribute the film? Justice Kennedy’s majority opinion devotes considerable space to explaining why “less radical” alternatives were, in fact, not really altenatives. That not one of the four dissenters agrees with Marcus suggests that she is on pretty shaky ground, and certainly suggests that it is unfair to call the majority “intellectually dishonest.”
2. “Under federal election law before the Supreme Court demolished it, corporations and labor unions were free to say whatever they wanted about political candidates whenever they wanted to say it. They simply were not permitted to use unlimited general treasury funds to do so. Instead, they were required to use money raised by their political action committees from employees and members. This is hardly banning speech.”
This shows little careful thought by Marcus. First, as Justice Scalia explains in his concurrence (and even more in his dissent back in Austin), a corporate PAC is not the corporation. It is a separate organization of which the law allows the corporation to serve as treasurer, and to pay administrative expenses. If Congress prohibited the Washington Post from endorsing candidates or voicing opposition to Supreme Court rulings in its editorials, I doubt that Marcus would say that this is not a ban because editors of the Post remained free to voice their opinions in other outlets (although not to speak, in those outlets, as the “Washington Post“).
But even if you don’t accept this line of reasoning, it is clear that for the overwhelming majority of corporations, Ms. Marcus’s statement is not true. As the majority noted, there are millions of corporations in America, and fewer than 2,000 of them have PACs. Why is this? For some, it is a choice. But for most, it is simply the reality. Complying with FEC regulations to establish and administer a PAC typically costs many thousands of dollars a year: for a large PAC, it can be hundreds of thousands. These PACs are then limited in the people from whom they can solicit money, and those people are limited in what they can contribute to the PAC.
Thus, while Fortune 500 companies typically have PACs, for the average small or mid-size business the PAC option is not practical. It would be as if the government prohibited individuals from publishing web pages or printing up pamphlets at Kinkos (oop, Federal Express Office), or making yard signs, and said, “well, this doesn’t ban you from speaking — you can always buy a newspaper like the Washington Post, and publish your thoughts there.” That may work for Rupert Murdoch, but it won’t work for most of us. Same with the PAC option.
Furthermore, under the law, starting a PAC is not something you can do overnight. Thus, if a corporation has not started and maintained a PAC well in advance, it is prohibited from speaking if a sudden issue arises. For example — and I know this hypothetical is quite a stretch, but bear with me — suppose you are a small, locally owned bank (yes, many do still exist) and suddenly, in the waning days of a special election to fill a U.S. Senate seat in, say, Massachusetts, the Democratic candidate, whom we’ll call, at random, Coakley, and with whom you’ve had no particular beef, suddenly endorses the President’s newly made proposal to tax banks. You think, “whoa, this tax would kill us: we’ve got to let our loyal customers know that if they care about their local bank, they should oppose Coakley.” But it’s too late. You don’t have a PAC. The corporation — that is to say, the people who own the corporation — cannot speak as a group of people in time to be meaningful in that election. Perhaps that’s not a ban — they could always speak in a few weeks or months time, after they had the PAC up and running — but as a practical matter, it’s pretty darn close.
3. “Second, in the face of logic and history, the majority acted as if there could be no constitutional distinction between a corporation and a human being. Untrue. The Supreme Court has long held that corporations are considered “persons” under the Constitution and are therefore entitled to its protections. For more than a century, Congress has barred corporations from making direct contributions to political candidates, with no suggestion that it must treat corporate persons the same as real ones; that prohibition stands, at least for now. The “conceit” of corporate personhood, as Stevens called it, does not mandate absolute equivalence.”
This is simply wrong, both as a matter of describing the majority’s opinion, and as a matter of law. Corporate rights are well established under the Constitution. UCLA’s Stephen Bainbridge, perhaps the nation’s pre-eminent corporate scholar, writes:
First, whatever the views of the original framers may or may not have been (and Scalia and Stevens square off on that issue in an interesting way), the framers of the 14th Amendment included corporations within the meaning of “person” in that provision. See Citizens United v FEC: The First Amendment Rights of Corporate “Persons”.
Second, as I note in my book Corporate Law
As a legal person, a corporation has most of the constitutional rights possessed by natural persons. See, e.g., First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 784 (1978) (corporation has First Amendment right of free speech); Hale v. Henkel, 201 U.S. 43 (1906) (corporation gets Fourth Amendment protection against unreasonable searches and seizures but not protected by Fifth Amendment privilege against self-incrimination); Blake v. McClung, 172 U.S. 239 (1898) (corporation not covered by the privileges and immunities clause of the Fourteenth Amendment or of the comity clause of Article IV); Minneapolis & St. Louis Ry. Co. v. Beckwith, 129 U.S. 26, 28 (1888) (corporation entitled to due process of law under the Fifth and Fourteenth Amendments); Santa Clara County v. Southern Pacific Railroad Co., 118 U.S. 394, 416 (1886) (corporation entitled to equal protection of the law under the Fourteenth Amendment).
If Stevens wants to exclude the corporation from having First Amendment rights, he’s got to explain why the Corporation gets all these other rights. If he wants to exclude the corporation from having any constitutional rights, he’s engaged in a striking act of judicial activism entailing overturning countless precedents handed down over many decades (which, in fairness, is what he accuses the majority of doing).
I wouldn’t necessarily expect Ms. Marcus to know this type of legal history or the status of scholarship on corporation theory, but it’s a bit bold of her to talk as if the Court doesn’t know what it is doing.
4. “That corporations enjoy free-speech protections does not mean they enjoy every protection afforded an actual person. Is a corporation entitled to vote? To run for office?”
This is an idiotic non-sequitur. Obviously, an association of people cannot vote, or run for office. Just an obviously, an association of people have a right to speak. Or does Ms. Marcus really believe that the lonely protestor on the street corner must literally remain alone — if he is joined by other people, he loses his speech rights because, well, the bunch of them can’t vote as a group, and can’t run for office as a group?
5. “Third, misreading its precedents and cherry-picking quotations, the majority acted as if the chief case it overturned was an outlier. In that 1990 case, Austin v. Michigan Chamber of Commerce, a six-member majority came to the unsurprising conclusion that a state law prohibiting corporations from making unlimited independent expenditures from their general funds was constitutional. The court dismissed this ruling as ‘a significant departure from ancient First Amendment principles.’ Again, untrue.”
And again, wrong. Austin has long been recognized, even by those who supported the decision, as the outlier in the Court’s campaign finance law. This is not really a subject of dispute in the academic election law community — its just a question of whether one believes that Austin is the better decision, or the Court’s other decisions are better. To take just one summary, as Loyola Law School’s Richard Hasen, a strong supporter of Austin and a harsh critic of this week’s decision, put it in his 2003 book, “The Supreme Court and Election Law”: “Austin represents the first and only case in which a majority of the Court accepted, in deed if not in word, the equality rationale as a permissible state interest.”
We could go further to explain how Ms. Marcus misinterprets other cases here, but in the interest of space will not. This is not to say that many, including the Citizens United dissenters, can’t find support for their position in other cases. But it is clearly she, and not the majority, on shaky ground, and Ms. Marcus (who has a Harvard law degree but has never practiced law and is not an expert in election law) is simply not qualified to make the [erroneous] assertion she makes.
6. “Fourth, the majority bizarrely invoked the ‘Mr. Smith Goes to Washington’ defense. Under the Austin ruling, Justice Anthony M. Kennedy argued, lawmakers unhappy with being lampooned in the movie could have done more than discourage its distribution — they could have banned the film. Beyond untrue. There is no scenario under which works of art about fictional lawmakers could be limited by campaign finance laws.”
Well, no again. “Mr. Smith goes to Washington” was produced and distributed by a corporation. Under the government’s theory in Citizens United, because it was produced and distributed by a corporation, it could have been banned. Now, it is true that the government has yet to push its theory so far as to try to ban a film about fictional lawmakers, but under its rationale it clearly could (at least insofar as those “fictional” characters could be identified by viewers as, in fact, representing clearly identified non-fictional candidates, and, one step further following “reform” logic, even if they couldn’t, but the film still eroded confidence in government or made voters slightly more likely to vote one way or the other); and it is true that even the government in Citizens United did not claim that works of art produced and distributed by individuals not organized as corporations could be limited. But it takes no stretch of the imagination to see how the government’s theory in Citizens United could eventually apply to any work of art. The majority again and again points to this lack of any principled stopping point, and the dissent really has no answer to it. And it would have been a very small step to apply the theory to “Mr. Smith Goes to Washington,” because, again, it was produced and distributed by corporations.
As Justice Kennedy made clear, the “Mr. Smith” example was not describing where we are, but where the road we are on takes us. Merely following the logic of the “reform” movement — and the law — to the next stage in its evolution. Reformers tend to chafe at that — they hate to face, or at least admit — where their theories can take us, at least in the hands of less scrupulous people. Now, the Court should not reflexively prohibit something because it poses a potential future threat, but the Court, charged with protecting our rights under the Constitution, surely acts properly when taking that possibility into account.*
Conclusion: Ms. Marcus concludes, “That the majority would stoop to this claim underscores the weakness of its case — and the audacity of the result it has inflicted on the political process.”
In fact, the opposite is true. Ms. Marcus’s comments are typical of those criticising the decision. Their inability to come to grips with the Court’s arguments, and longstanding precedent in the realm of election law and the status of corporations under the Constitution, represents the weakness of the case against this week’s decision.
* As an aside, it is worth noting that much campaign finance regulation is based on the same logic — that more restraints are needed to prevent “circumvention” of the law.
