Commentary
Court decision doesn't harm democracy, but helps it
by Mahesha SubbaramanAccording to the First Amendment, "Congress shall make no law ... abridging the freedom of speech." If this principle means anything, it is that government cannot stop you from speaking your mind, no matter who you are or what you believe.
It also means that the government cannot stop you from reading the newspapers you want to buy, listening to the speakers you want to hear, or watching the movies you want to see.
At no time is the freedom of speech more important than right before an election. Yet, two years ago, when a group of fellow Americans called Citizens United wanted to give Americans the chance to watch a controversial political documentary on pay-per-view television right before a primary election, the government banned them from doing so.
You read that right: Free speech. Banned. In America. Right before an election.
How could this be?
Unfortunately, until this year, the Bipartisan Campaign Finance Reform Act (BCRA) threatened any group of American citizens organized for legal purposes as a "corporation" or "labor union" with fines and jail time if they spent money to broadcast speech supporting or opposing a candidate for federal office up to two months before an election -- all, allegedly, in order to "protect" people's faith in honest government from "special interests" with big money.
On Jan. 21, however, the Supreme Court ended this paternalistic charade, ruling in Citizens United v. Federal Election Commission that all Americans enjoy the same right to free speech, regardless of the kind of associations they form in order to exercise this right.
As the court held: "When Government seeks ... to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful."
Now, critics of this decision claim it will lead to nothing less than the end of democracy in America. But it should be hailed by all Americans as a vindication of free speech, the core value that makes democracy possible in the first place.
Consider two of the major claims made by critics of the decision and how effectively the Supreme Court itself addressed each of them.
The first claim is that corporations and labor unions are not people, so they have no free speech rights. To the contrary, corporations -- which are nothing more than groups of individuals -- derive their free speech rights from the people who compose them. Think about the self-employed electrician who incorporates his small business for tax and legal liability reasons. Should he lose the right to speak using his hard-earned wages merely because his business is a "corporation?"
Moreover, as the court observed, if government censorship of small, nonprofit groups like Citizens United can be justified merely because these groups enjoy "corporate" status, then what about the speech of large media "corporations" like the New York Times, or that of the local Rotary or Kiwanis club? After all, the Supreme Court has repeatedly held that the "media" enjoy no special constitutional protection, and the exemption that BCRA made for "media corporations" was a statutory one. What Congress giveth, so Congress can take away.
The second claim is that, under the Citizens United decision, corporations and labor unions are now free to buy elections and ruin democracy: If anything, the opposite is true.
Indeed, by ending the kind of discriminatory censorship permitted under BCRA, the Supreme Court has freed the voices of over 6 million American corporations and labor unions of all sizes, purposes and political orientations, making it that much harder for any one group of citizens to monopolize the marketplace of ideas, much less "buy" an election.
As the court concludes: "Factions should be checked by permitting them all to speak, and by entrusting the people to judge what is true and what is false." In other words, the First Amendment confirms the freedom to think for ourselves.
Unfortunately, in concluding that the court erred by not allowing the government to ban corporations' speech, critics of the Citizens United decision have concluded that this freedom must give way to censorship. Thankfully, the framers -- and the court -- disagreed.
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Mahesha Subbaraman is a second-year law student at the University of Minnesota and a law clerk at the Institute for Justice Minnesota Chapter, which filed a friend-of-the-court brief in support of Citizens United. The institute describes itself as the nation's only libertarian public interest law firm.
Comments (17)
This article is a joke! Corporations having untold spending power to influence elections and thus our government. A corporation is not a person despite what the activist judges say!
I agree with the author that free speech should be broadly upheld and that the status quo has been problematic. But I'm not so sure that there isn't a difference between a corporation and an individual. Spending my paycheck to support a candidate seems quite different than a corporation spending it's income. A corporation is indeed a collection of individuals, but some shareholders are likely to object to how corporate managers spend their money and "speak freely." And what about foreign corporations influencing our elections? There have always been limits on free speech--where are they here? I'm a fan of free speech, messy though it is, but so far I can't seem to cheer for this ruling.
Free speech is not an absolute right... no one has the right to yell "Fire!" in a crowded theater without cause. Pornography is restricted. Slander can be punished. There are, indeed, appropriate limits on speech. And allowing corporations to use corporate funds for political purposes (which would make it effectively tax-supported speech) is an ideologic response to a problem that needs pragmatic solution. The decision was poorly thought out, will have strong negative consequences to American political process, and is therefore bad law... regardless of the warm fuzzies the justices felt in affirming their conservative passions.
I'm glad someone thinks over 100 million Americans can easily sort through a multitude of last minute messages and accurately conclude the veracity of the conflicting messages in order to assure a legitimate election. I don't share his confidence.
People already don't think the folks in Washington are working for them as much as they are working for the lobbyists and the corporations they represent. This ruling just re-enforces that lobbyist/special interest influence. Good grief. To say Corporations had lost their freedom of speech is to require everyone to ignore the reality that is K street.
A corporation is not a person-it may have peple working for it, but unless alll of them get to vote on where money is going, it is not a person. They have huge amounts of money and power.very few people do. I think your analogy does not hold up. As to limiting free speech, I am sorry, but defaming and berating should never be considered free speech
It is extraordinary that a law student could actually equate corporate money as free speech equal to individual citizens. Free speech in the age of unlimited money in politics is an oxymoron of the highest caliber. There is an enormous difference between a group of completely like minded individuals banding together to advocate for an issue as compared to a corporation that issues a majority proxy fight to spend unlimited profits to gain governmental favors. Even if a shareholder disagrees, the difficulty of fighting a board recommendation is enormous. We have entered a slippery slope resembling the steepest of cliffs. All in the name of a 5-4 Constitutional interpretation that negates a 100 years of settled law. This is the tyranny of the tiniest of minorities.
Huge corporations are going to be able to advance their agendas by funding hateful and fear evoking political ads. The voice of the individual will be drowned out. I feel that there should at least be some sort of cap on the amount they are able to donate, even though I feel they should not be able to make a contribution at all. This Supreme Court decision is the start of very bad things to come.
Ok, let me get this straight. Corporations are not individuals but unions are. As Spock would say "that is illogical". The California Teachers Union is one of the largest in the state and they use their money to influence elections and push their agenda all the time whether or not all members agree. Hmm, I guess I'm just a confused "Tea Bagger"
Charles John from San Diego.....Corporations are not individuals and neither are Unions...they are associations of individuals. They both should have no say in our political process. Each of these entities is comprised of individuals that alread do havea say in the process. Our democracy is being stolen by big money....Limit all campaign financing and institute term limits and a lot of our problems would go away. I don't want my elected officials representing anyone but the PEOPLE they serve.
I find Mr. Subbaraman's argument to be very flawed. Our democracy is and has always been under an attack of sorts by moneyed interests who naturally want to use their resources to affect legislation. If the CEO of a company wants to spend his or her personal money on campaign ads, have at it. But a corporation is not a "person". To equate a company like IBM with me is ridiculous - and dangerous.
As long as the recipients of the money has to fully disclose where their campaign contributions came from, can't we decipher for ourselves who are on our side and who are corp. sellouts? Likewise, if the group funding a campaign ad had to put "paid for by" like they do now, can't we figure out who is pulling the strings. We just need to educate ourselves on who's buying whom. Let's get off the couch and be an active participant in OUR government and not leave it up to ads to influence our decisions.
George Joseph from Worcester: I agree with everything you wrote. Unions and their "BIG Money" have bankrupted California because of their political influence. The SCOTUS decision just levels the playing
I am flummoxed by the negative reactions to the Supreme Court's recent ruling in Citizens United. The Court merely held that profit and nonprofit corporations (including the Sierra Club, the ACLU, the NAACP, and similar organizations), and unions cannot be censored by Congress from taking a political position concerning candidates for political office within 60 days of a federal election. Tellingly, the Los Angeles Times, CNBC, MSNBC and other media organizations have been exempt from this censorship law.
Erwin Chermerinsky claims that "conservative justices are happy to be activists when it serves their ideological purpose." Guilty as charged. The ruling serves all ideological purposes except, perhaps, totalitarians. Constitutional scholars recognize political speech as the most cherished and most protected of all forms of speech. Part of this law was enacted over the veto of President Harry Truman, and, along with Justices Harry Black and William O. Douglas, were convinced of its unconstitutionality.
Citizens United should be hailed as a hallmark free speech case that prevents Congress from severely encroaching upon the market-place of ideas. As the Court noted, "The civic discourse belongs to the people, and the Government may not prescribe the means used to conduct it."
The First Ammendment wasn't conceived to allow corporations to saturate the national discourse with political ads, but to safeguard the voice of the American citizen. With this decision, that voice will all but drown. Corruption and political patronage, already rampant, will wrap their tendrils further around the bleeding heart of our republic.
Corporations are not people. They are not concerned about the public good. Their only goal is the pursuit of profit by any means possible. They have resources far beyond the American citizen. Comparing them to American citizens would be laughable if it weren't so scary.
"The first claim is that corporations and labor unions are not people, so they have no free speech rights. To the contrary, corporations -- which are nothing more than groups of individuals -- derive their free speech rights from the people who
compose them."
That's right. Corporations are composed of people who ALREADY have the right of free speech. I take no issue with their using that right individually. You have failed to show how limiting corporate speech limits individual speech.
"Thankfully, the framers -- and the court -- disagreed. " The corporation was far less pervasive a business model in the framer's day. They could never have imagined the scope and power of modern corporations. But since you seem to be confused about the founder's intentions, I offer you these quotes:
"I hope we shall... crush in its birth the aristocracy of our
moneyed corporations, which dare already to challenge our
government to a trial of strength and bid defiance to the laws of
our country." --Thomas Jefferson to George Logan, 1816.
"The power of all corporations, ought to be limited. The growing wealth acquired by them never fails to be a source of abuses." - James Madison
Not really a founding father, but...
"The money powers prey upon the nation in times of peace and conspire against it in times of adversity. It is more despotic than a monarchy, more insolent than autocracy, and more selfish than bureaucracy. It denounces as public enemies, all who question its methods or throw light upon its crimes. I have two great enemies, the Southern Army in front of me and the Bankers in the rear. Of the two, the one at my rear is my greatest foe.. corporations have been enthroned and an era of corruption in high places will follow, and the money powers of the country will endeavor to prolong its reign by working upon the prejudices of the people until the wealth is aggregated in the hands of a few, and the Republic is destroyed. -" Abraham Lincoln
Strange indeed that a law student equates a corporation to an individual citizen. Perhaps Mr, Subbaraman has not yet taken the course in corporate law. When he does he will probably learn that corporations were conceived as a legislative investment scheme that limited the liability of individuals who sought to protect their person wealth but do business without risking everything. So for that reason corporations can not marry, adopt children, plead the privilege against self incrimination, or vote in elections. Nor are corporations democratic institutions; they are ruled by directors, civilly liable to the stockholders for their acts and omissions. Their aim is to make money, not advance public discourse on the body politic.
I would also think that any law student would recognize the importance of funding and communication in behalf of a particular candidate. It wins elections for many people of questionable character and ability. Consider the candidate for lieutenant governor, Mr. Cohen, in Illinois, for example.
The whole point of the BCRA (not the BCFRA) is to prevent large investors from buying political influence, a point apparently lost (or ignored) on the Supreme Court's narrow majority, but certainly not on the Congress. That includes media broadcasters as well, by the way. But what are a few distortions of fact in the name of the righteous cause?
The real danger to democracy is not infringement on free speech; it is with five political activists who reached out for an issue that no party before the court had considered or even raised before the court. We have seen this once before in Bush v Gore, when the court reached out to decide a matter of state law contrary to over 100 years of so-called settled jurisprudence. I dare say we may see more of it as the new majority continues to advance its bizarre notions of constitutional law circa 1776.
It's obvious this guy is being subversive in order to try to take over our country and turn us into facist mormans. He should be locked up under the sedition act, or whatever law that was.
The firing March 25, 2010, of conservative pundit David Frum from the American Enterprise Institute highlights another flaw in the Supreme Court's recent decision extending First Amendment rights to corporations. That decision, based in part on the logic that corporations are composed of individuals who individually have a right to free speech, ignores the fact that individuals have no right to free speech in a corporation, as David Frum found out. Corporations are NOT democracies and have never extended to employees the blessings of liberty or the rights of democracy. So to extend to corporations the rights that corporations do not extend to their individuals is illogical, nonsensical, and absurd.
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