Talk on Citizens United

Here’s a talk I gave–or intended to give–at a student-sponsored event on Citizens United at Rutgers, on April 17th.  It was a more informal event than I had anticipated, three political scientists and me.  One of them kept saying she wasn’t an expert on the case or the issues, but that didn’t matter, and I finally had to object.  No, I’m not a legal scholar, but I wouldn’t agree to speak in public unless I has something to say.  Anyway, here’s what I wanted to say.

I’ve cribbed from the two earlier pieces, so you can skim in the middle there.

_____________

I’m here to argue on historical grounds against the Citizens United decision of 2010.  I think the logic of the decision is flawed, of course, but only because the court seems to have forgotten the central principle of conservative jurisprudence, which favors custom and precedent over reason—previous truth over novel fact.  This court’s majority gleefully admires its own intellect, its ability to interpret, or rather to give, the law.  It proceeds as if the doubts about the authority of reason which are built into the common law—the doubts that lead to the guarantee of trial by one’s peers, to “discovery” of the facts of the case, to argument about the meaning of those facts before a jury—are so many impediments to right thinking.

Our legal system, and our sense of justice, are at odds with this court, because it presumes to know better than we do, as if the Politbureau had been secretly reassembled in Washington.  Our legal system, and our sense of justice, are not organized around the notion that the best and the brightest should be telling the rest of us what’s good for us.  Instead we count on vigorous difference, and social interaction that honestly articulates our differences, to bring out the truth.  “The clash of doctrines is not a disaster, it is an opportunity,” as Alfred North Whitehead wrote, on the assumption that conflict over what the relevant facts are will bring out more of them, and more of their multiple meanings.  So a fair trial is more important than whether innocence or guilt is correctly decided, as Charles Lindblom argued in his brilliant, mind-bending book of 1977, Politics and Markets.  The procedure is more important than the conclusion, no matter how bizarre that conclusion, because it involves and educates all parties to the bargain.

The Roberts majority doesn’t get this.  Principles and logic overrule both discursive precedent and contemporary reality, because these men know better than we do.  In fact, their intellectual procedures exclude both previous truth and novel fact, thus leading us into the airless room of mad abstraction, where all save Scalia must suffocate, and he will survive only because his God knows his good intentions and admires his resolute logic.  So the most exquisite irony the Roberts court has produced is the repression and mutilation of the usable past that resides in “original intent”—a notion it deploys to the same extent a resentful son honors his abusive father at the funeral by saying “thank you” when condolences get offered, as a memory better lost than preserved, a rhetorical device rather than a lived commitment.

In short, this court is willfully obtuse.  It prefers to ignore reality in the name of ideological principle, and says as much.  And so, like the Taney court of the 1850s, or like the Politbureau of the 1970s, it announces its irrelevance with every new decision—or rather it announces its indifference and opposition to historically determined realities, including the intent of the founders.

This statement might sound vaguely radical or inappropriately angry to you in this quaint academic setting, like the mystifying noise you hear from the wrong news channel.  So let me illustrate it in three ways.  First, the Citizens United decision posits a political economy that exists only in the fertile imaginations of those who can afford to buy into its precincts, where perfect competition and anonymous laws of supply and demand create equality among all citizens, no matter their income, social standing, or purposes—where liberty, property, and Bentham rule, as Marx hilariously put it in describing not heaven but hell on earth.

I’ll indulge myself here and quote Marx a bit more on Bentham, “that insipid, pedantic, leather-tongued oracle of the ordinary bourgeois intelligence,” because his words apply with only minor revision to the blithe arrogance that accompanies the majority’s gross ignorance of economic reality and thus moral possibility:

“In no time and in no country has the most homespun commonplace ever strutted about in so self-satisfied a way.  The principle of utility was no discovery of Bentham.  He simply reproduced what Helvetius and other Frenchmen has said with spirit in the 18th century.  To know what is useful for a dog, one must study dog-nature.  This nature itself is not to be deduced from the principle of utility.  Applying this to man, he that would criticise all human acts, movements, relations, etc., by the principle of utility, must first deal with human nature in general, and then with human nature as modified in each historical epoch.  Bentham makes short work of it.  With the driest naivete he takes the modern shopkeeper, especially the English shopkeeper, as the normal man.  Whatever is useful to this queer normal man, and to his world, is absolutely useful.  This yard-measure, then, he applies to past, present, and future.  The Christian religion, e.g., is ‘useful,’ because it forbids in the name of religion the same faults that the penal code condemns in the name of the law.  Artistic criticism is ‘harmful,’ because it disturbs worthy people in their enjoyment of Martin Tupper, etc. . . . Had I the courage of my friend Heinrch Heine, I should call Mr. Jeremy a genius in the way of bourgeois stupidity.”

Just so, I would say, of Antonin Scalia and his majority: its ideas are the extremity of bourgeois stupidity because they take for granted a world that lives only in textbooks, and these assigned only in Econ 101.  These queer normal men insist that their theories must overrule history.

Second, the Citizens United decision ignores the ambiguities of the very precedent it cites as its indispensable source (Bellotti), and, in doing so, it obliterates the deeper precedents invoked by the four dissenters in that case.

Third, the decision collapses, or rather repudiates, the distinction, and the contest, between the rights of persons and the rights of property which was the heart of what we call “original intent”; in this sense, the determined ignorance of the Roberts majority returns us to the pre-Constitutional state that James Madison feared more than anything else as the moment of republican eclipse. when the poor were sacrificed to the rich in the name of liberty.

In order, then.

(1)  Citizens United contains and purveys a picture of the modern-industrial market that is naive at best, particularly when the figure of the corporation must be the logical and historical pivot of the decision, and when new communication technologies—cable TV, the Internet, YouTube—are acknowledged as significant devices in delivering political opinions [on the technology, see pp. 36-37, 48-49, 55].  For example: “All speakers, including individuals and the media, use money amassed from the economic marketplace to fund their speech.” [35]  This is of course untrue of most individuals who, as “natural persons,” cannot or do not “fund” their speech with money unless they have way more than enough of it.

I concede that I spent some money getting here tonight, to speak with you about this troubling court decision—the tolls alone amount to $18.00.   But nobody in their right mind would compare this expenditure to that of a corporation in an electoral campaign or in an advertisement for its products.  In that sense, the scale of money “amassed from the economic marketplace” to fund speech is more important than the source.  We all want to change outcomes, but some of us have more money than others, and because our money buys time and energy in the economic marketplace, we have an advantage over those with less.

Everyone except the Roberts majority and the Federalist Society knows that the economic marketplace is no longer a level playing field because corporations have vastly more resources than individuals, unless those individuals can pool their resources on the scale that corporations routinely deploy their earnings (or pool the resources of their shareholders) for political purposes.  Just ask the late Irving Kristol, the founding father of neo-conservatism, who, in ridiculing Friedrich Hayek and Milton Friedman’s innocent fantasies about the market, said this: “There is little doubt that the idea of the ‘free market,’ in the era of large corporations, is not quite the original capitalist idea.  . . .[The] concentration of assets and power—power to make economic decisions affecting the lives of tens of thousands of citizens—seems[s] to create a dangerous disharmony between the economic system and the political.” [Two Cheers for Capitalism, 1978).

(2)  Still, the question here is whether associations as such can be barred from engaging in political speech.  The Citizens United decision quotes Pacific Gas & Electric Co. v. Public Utility Commission of California 475 U.S. 1 (1986) to drive home the point: “The identity of the speaker is not decisive in determining whether speech is protected.  Corporations and other associations, like individuals, contribute to the ‘discussion, debate, and the dissemination of information and ideas’ that the First Amendment seeks to foster (quoting Bellotti, 435 U.S. at 783).  The Court has thus rejected the argument that political speech of corporations or other associations should be treated differently under the First Amendment simply because such associations are not ‘natural persons.’”  The Court then cites United States v. CIO 335 U.S. 106 (1948) and United States v. Automobile Workers 352 U.S. 567 (1957) to remind us that the collective identities or unnatural persons we know as trade unions or labor movements are as susceptible to the sanctions of 441b as corporations [see 26-28].  As we will see shortly, however, the summary statement of Bellotti’s unambiguous result is at least misleading—obtuse at best, dishonest at worst.

The Roberts majority is no less confused about the meanings of corporate personhood than all the precedents cited, about which more to follow.  Apart from corporations, the words used to describe the source of the speech to be protected by the First Amendment are numerous: individuals, persons, entities, associations, citizens, and especially speakers [see 22-26].  But person is used sparingly—no more than twice by my count—and the figure of the individual seems to retain the meaning of “natural person,” because when it appears, either metaphor rules, as in corporations are “like individuals” (Bellotti), or the conditional/subjunctive mood takes over: “If ~441b applied to individuals, no one would believe that it is merely a time, place, or manner restriction on speech.  Its purpose and effect are to silence entities whose voices the Government deems to be suspect.” [23]

The question begged here by the quotation of Bellotti is, how are corporations like individuals?  Corporate legal theory between 1886 and 1926, from Stephen J. Field of the 9th Circuit and the Supreme Court to John Dewey of Columbia University, was animated by the assumption that these new corporations were nothing like the individuals of old.  And of course if 441b applied to individuals, we’d be worried about our civil liberties—the point is that it presupposed, and promised to enforce, a practical, legal, actionable distinction between corporations and individuals.  But where did that legal distinction come from after vertically integrated industrial corporations had become the norm, in the early 20th century?  There is no answer in Citizens United; the question never comes up because the majority is so oblivious to the history of the corporation.

So let’s look at Bellotti.

The outspoken dissenters from the 5-4 majority opinion were the most conservative members of the Burger court, Byron White and William Rehnquist.  Ironies abound here.

The two most liberal members, Justices William Brennan and Thurgood Marshall, signed onto White’s dissent.  In 1952, Rehnquist, then serving as a clerk to Supreme Court Justice Robert Jackson, wrote a brief in support of Plessy v. Ferguson 163 U.S. 537 (1896), which the court was then preparing to overturn, in accordance with the arguments of the NAACP’s brilliant young counsel, Thurgood Marshall, in the case of Brown v. Board of Education 347 U.S. 483 (1954).  The lone dissent in Plessy was John Marshall Harlan, who, a year later, would assemble a majority of the court that repudiated the common law distinction between reasonable and unreasonable combinations in restraint of trade—the distinction animating the Sherman Anti-Trust Act of 1890—by making all combinations unlawful.  Not until 1911 was the “rule of reason” restored, and the corporate legal form finally validated at the law.  In 1978, in Bellotti, Rehnquist cites Harlan’s decision in Northwestern National Insurance Co. v. Riggs 203 U.S. 243 (1906) as his principal precedent.  And quite apart from these unlikely intersections, the Bellotti majority itself treats corporate personhood with almost hilarious irony, and refuses to base its decision on Santa Clara, saying, repeatedly, that whether corporations are persons or not has nothing to do with its decision.

In Bellotti, the Court overruled the Supreme Judicial Court of Massachusetts, which had upheld a state law restricting the free speech of corporations to “general political issues” that materially affected their business, property or assets, on the grounds that a corporation has more limited First Amendment rights than a natural person.   The question the lower court had asked in upholding that law was “whether business corporations, such as [appellants], have First Amendment rights coextensive with those of natural persons.”   The Supreme Court of the U.S. summarized the lower court’s logic as follows: “The [Massachusetts] court found its answer in the contours of a corporation’s constitutional right, as a ‘person’ under the Fourteenth Amendment, not to be deprived of property without due process of law.  Distinguishing the First Amendment rights of a natural person from the more limited rights of a corporation, the [Massachusetts] court concluded that ‘whether its rights are designated “liberty” rights or “property” rights, a corporation’s property and business interests are entitled to Fourteenth Amendment protection.’” [771]

Notice the scare quotes around person—those were supplied by the Supreme Court’s majority, not the lower court.  And notice the distinction that the lower court makes between a natural person and a corporation, limiting the latter’s First Amendment rights, in effect, to the protection of its property, not the protection of its capacity or agency as an individual entitled to free speech.

The Supreme Court’s majority gets more ironic about the personhood of corporations when it displaces what it calls the “principal question” adduced and addressed by the lower court.  “The court below framed the principal question in this case as whether and to what extent corporations have First Amendment rights.  We believe that the court posed the wrong question.  The Constitution often protects interests broader than those of the party seeking their indication.  The First Amendment, in particular, serves significant societal interests.  The proper question therefore is not whether corporations ‘have’ First Amendment rights and if so, whether they are coextensive with those of natural persons.  Instead the question must be whether ~8 [the section of the statute limiting corporate speech to “general political issues” affecting the business, property, or assets of corporations] abridges expressions that the First Amendment was meant to protect.  We hold that it does.” [775-76]

Notice again the scare quotes.  The Supreme Court majority is suggesting that the identifiable origin of political expression is irrelevant to deciding whether or not the expression itself deserves protection under the First Amendment.  In this sense, the majority is using a strictly pragmatic logic that gets us to the place Nietzsche first mapped in the Genealogy of Morals: “there is no ‘being’ behind doing, effecting, becoming: ‘the doer’ is merely a fiction added to the deed—the deed is everything.”

Here is how the Supreme Court majority puts it: “The inherent worth of the speech in terms of its capacity for informing the public does not depend upon the identity of its source, whether corporation, association, union, or individual.” [777]  Now all beautiful souls can appreciate this self-evident proposition, and probably agree with it as well.  But the “inherent” worth of speech as such is not the vital issue being decided in Bellotti.  As the lower court and the dissents make clear—and as the majority itself acknowledges—that issue is whether the resources of corporations, which are always larger than those of natural persons, will disproportionately affect “the discussion of governmental affairs,” that is, the speech that informs electoral politics.  So the real question here is whether the inherent worth of speech is a price.  To frame the question as Madison might have, can the rights of persons balance the rights of property if the courts no longer observe the difference between these “two cardinal objects of Government”?  To frame the question as Marx might have, what follows when the use values of free speech are reduced to exchange values?

The majority goes on to say that “we need not survey the outer boundaries of the [First] Amendment’s protection of corporate speech, or address the abstract question whether corporations have the full measure of rights that individuals enjoy under the First Amendment.”  It then does exactly that in the footnotes, happily contradicting itself throughout.  On the one hand, it notes that “certain ‘purely personal’ guarantees, such as the privilege against compulsory self-incrimination, are unavailable to corporations and other organizations because the ‘historic function’ of the particular guarantee has been limited to the protection of individuals.  United States v. White 322 U.S. 694, 698-701 (1944).”  [779 n. 14]  On the other hand, it insists, contra the lower court, that liberty as well as property is protected by the Fourteenth Amendment’s due process clause, and from this premise it concludes that corporations are persons, after all: “It has been settled for almost a century that corporations are persons within the meaning of the Fourteenth Amendment.  Santa Clara County v. Southern Pacific Ry. Co., 118 U.S. 394 (1886); see Covington & Lexington Turnpike R. Co. v. Sandford, 164 U.S. 578 (1896).”  [780 n. 15]

Byron White’s dissent draws very clear lines: “Indeed, what some have considered to be the principal function of the First Amendment, the use of communication as a means of self-expression, self-realization, and self-fulfillment, is not at all furthered by corporate speech.”  White here cites Thomas Emerson’s seminal, Aristotelian work on freedom of speech; but then so did the majority. [804-5, 777 n. 11]

White offers three reasons to believe that corporate speech is detrimental to the expression required by democratic political discourse.  First, its purpose is profit, which in principle stands apart from what Emerson called the system of freedom of expression, and in practice often stands athwart that system (after all, the most fantastic private fortunes in history have been generated under the most corrupt and closed political regimes).  Second, the diversity of shareholder’s views is erased when managers use corporate rather than personal funds to further a political cause; thus political and ideological diversity is flattened out by corporate speech of the kind outlawed by the Massachusetts statute and upheld by the lower court.  Third, corporations “are artificial entities created by law” which have impersonal attributes—limited liability, perpetual life, etc.—that confer upon them a “special status.”  And this status “has placed them in a position to control vast amounts of economic power which may, if not regulated, dominate not only the economy but also the very heart of our democracy, the electoral process.” [804-09]

White actually runs the numbers in contemplating the potential effects of “unrestrained corporate expenditures in connection with ballot questions,” in Massachusetts, California, and, of all places, Montana.  In Massachusetts, the referendum of 1972 proposed to amend the state constitution to allow a graduated income tax on both individuals and corporations.  In California and Montana, the referenda of 1976 proposed legislative approval of nuclear plant sites.  In Massachusetts and Montana, the ratio of corporate vs. personal spending was approximately 100 to 1; in California it was 2 to 1.  All three measures were defeated. [810-11 and 811 n. 11]

White then goes on to invoke the Corrupt Practices Act of 1907, which “has consistently barred corporate contributions in connection with federal elections,” but has never been adjudicated by the Supreme Court as to its constitutionality, noting meanwhile that the common law itself has been “generally interpreted as prohibiting corporate political participation.” [811-12, 819]  And he concludes by predicting Citizens United: “If the corporate identity of the speaker makes no difference, all the Court has done is to reserve the formal interment of the Corrupt Practices Act and similar [state-level] statutes for another day.” [821]

William Rehnquist’s dissent is even more interesting.  Here’s how it begins:

“This Court decided at an early date, with neither argument nor discussion, that a business corporation is a ‘person’ entitled to the protection of the Equal Protection Clause of the Fourteenth Amendment. [Santa Clara citation omitted]  Likewise, it soon became accepted that the property of a corporation was protected under the Due Process Clause of that same Amendment.  See, e.g., Smyth v. Ames 169 U.S. 466, 522 (1898).  Nevertheless, we concluded soon thereafter that the liberty protected by that Amendment ‘is the liberty of natural, not artificial persons.’  Northwestern Nat. Life Ins. Co. v. Riggs 203 U.S. 243, 255 (1906).” [822]

So a corporation can be a person at the law, but as a special case—only to the extent that its property is protected by the due process imperative of the Fourteenth Amendment.  Its liberty, or rather it rights as an artificial person, are derived from, and limited to, the scope of it effective claims on property.

Rehnquist makes another, more subtle distinction between natural persons and corporations in view of White’s citation of Emerson.  “Since it cannot be disputed that the mere creation of a corporation does not invest it with all the liberties enjoyed by natural persons, United States v. White, 322 U.S. 694, 698-701 (1944) . . .our inquiry must seek to determine which constitutional protections are ‘incidental to its very existence.’ Dartmouth College, supra, at 636.”  [824]  The reference here is to John Marshall’s famous 1819 dictum, whereby a corporation becomes “an artificial being, invisible, intangible, and existing only in contemplation of law,” and, as such, “possesses only those properties which the charter of creation confers upon it, either expressly, or as incidental to its very existence.” [cit. 823]  With or without Marshall’s severe judgment, which was superseded by “natural entity” theories of the corporation in the 1890s and after, Rehnquist can go on to ask whether political as against commercial speech is, in fact, “incidental to the business of a commercial corporation” [825]—to ask, in other words, whether the protection of its property requires more than the narrow freedoms of commercial speech.  Unlike an individual, who requires access to political speech to fulfill her functions as citizen and to realize her capacities as a human being—to achieve liberty—a corporation does not.

(3)  As for original intent.  It can’t be known without moving beyond the text of the Constitution itself, because key words like “persons” won’t make sense without some understanding of the alternatives.  The three-fifths clause of the original document, for example, says three-fifths of all other persons, not Negroes or slaves or servants (as Lincoln noted, this usage suggests that the founders thought of slaves as human beings, not, a different, inferior species).  The 14th Amendment uses the same word in enlarging the compass of due process, and because it did, many of us now have rights that might not exist had the word been “citizen” or “freedman”; indeed corporate personhood would be unthinkable had the Joint Committee on Reconstruction not taken the long view (but no, it was not thinking in 1867 that it could protect corporations from the popular will by recourse to “persons”).

Let us examine the original intent at work in the mind of the founder, James Madison.  I quote from his “Observations on Mr. Jefferson’s Draft of a Constitution for Virginia,” in which he tries to change his colleague’s mind by rehearsing the history of the revolution they made.  The passage turns on the property qualification for the right to vote.  Keep in mind that Madison, like all 18th-century revolutionaries, believed that the material foundation of the self-determining personality was property, and that only such personalities could sustain a republican polity—only such self-reliant, economically independent men could withstand the appeals of the demagogue or the threats of the powerful, and do the right thing.

I’ll be stopping and starting, and placing emphasis where I think it belongs.

“The first question arising here is how far property ought to be made a qualification.  There is a middle way to be taken which corresponds at once with the Theory of free Government and the lessons of experience.  A freehold or equivalent of a certain value may be annexed to the right of voting for Senators, and the right left more at large in the other House.  Examples of this distinction may be found in the Constitutions of several States, particularly if I mistake not, of North Carolina and N. York.

“This middle mode reconciles and secures the two cardinal objects of Government, the rights of persons, and the rights of property.  The former will be sufficiently guarded by one branch, the latter more particularly by the other.

“Give all power to property, and the indigent will be oppressed.  Give it to the latter [the propertyless] and the effect may be transposed.  Give a defensive share to each and each will be secure.

“The necessity of thus guarding the rights of property was for obvious reasons unattended to in the commencement of the Revolution [because small holders were the avant garde of rebellion in New England and the middle states; in the Chesapeake, the planters were always out front].  In all the Governments which were considered as beacons to republican patriots and lawgivers, the rights of persons were subjected to those of property.  The poor were sacrificed to the rich.

“In the existing state of American population and American property, the two classes of rights were so little discriminated that a provision for the rights of persons was supposed to include of itself those of property, and it was natural to infer that from the tendency of republican laws that these different interests would be more and more identified.

Experience and investigation have however produced more correct ideas on this subject.

“It is now observed that in all populous countries, the smaller part only can be interested in preserving the rights of property.  It must be foreseen that America and Kentucky itself will by degrees arrive at this State of Society; that in some parts of the Union a very great advance is already made towards it.”

What was to be done?  Sacrifice the poor to the rich, according to the historical precedent of ancient and modern republics—those beacons to patriots and lawgivers—by subjecting the rights of persons to the rights of property in the name of liberty?  Or sacrifice the rich to the poor by relinquishing the rights of property, liberty itself, in the name of equality?

Madison chose the middle way, the middle mode.  The point was to keep “the two cardinal objects of Government” in tension, in dialogue, letting each limit, inform, and modulate the other, thus promoting the general welfare.  Dividing the legislative branch against itself was his institutional means of sustaining the tension and the dialogue—the separation of powers, as he conceived it, was not just a matter of designating different functions for the three branches of government.

Original intent, by this accounting, meant refusing the either/or choice between the rights of persons and the rights of property—it meant acknowledging, maintaining, and enforcing the distinction between these “two cardinal objects of Government.”  You might then say that the Santa Clara decision of 1886 adjourned the distinction, and with it Madison’s middle way.  But then you would have to ignore Bellotti, the principal precedent of Citizens United, where the identity of corporate personhood and corporate property is expressly denied.  You would also have to ignore Northwestern v. Riggs.

Regardless of how you treat the decisions that follow Santa Clara, you can be certain that in Citizens United, the Roberts court has deliberately abolished any meaningful distinction between the rights of persons and the rights of property.  In doing so, it has decided to recapitulate the itinerary of the ancient and modern republics Madison  studied, admired, and repudiated, all of which doomed themselves by subjecting the rights of persons to the rights of property.  As Madison himself might say, this court has announced the end of the old Republic by sacrificing the poor to the rich.

 

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