We’ve written quite a lot about the problems with the Supreme Court’s Citizens United decision, and how it unleashed a tsunami of corporate campaign cash that is swamping our democracy. (For background, see: The Story of Citizens United – Why democracy only works when people are in charge.)
But writing at The American Prospect, writer/law professor Garrett Epps says Citizens United is just the tip of a 40-year-old iceberg, so even passing a constitutional amendment ending corporate personhood won’t solve the problem.
For starters, he notes that the very same Supremes who voted for unfettered campaign money were perfectly willing to recognize that there can be reasonable, sane limits on corporate personhood in other contexts. For instance, just last year, when AT&T tried to take advantage of a “personal privacy” exemption in the Freedom of Information Act:
Chief Justice John Roberts, writing for a unanimous Court, ridiculed the claim: “We reject the argument that because ‘person’ is defined for purposes of FOIA to include a corporation, the phrase ‘personal privacy’ in Exemption 7(C) reaches corporations as well. The protection in FOIA against disclosure of law enforcement information on the ground that it would constitute an unwarranted invasion of personal privacy does not extend to corporations. We trust that AT&T will not take it personally.”
Harsh, but fair. But if poor li’l corporations shouldn’t “take these things personally”, then why do we have this bizarro-world notion that corporate speech (=cash) can’t have any sort of limit set on it?
The problem comes when we hit the First Amendment. Epps notes:
- Political speech is the most protected kind of speech under the First Amendment.
- Thus if by a heroic effort we enacted a constitutional amendment stating that corporations are not people, a future conservative Court would have no trouble striking down limits on corporate political expenditures anyway.
- Current First Amendment doctrine – dating back nearly a half-century before Citizens United - would make the opinion easy to write.
- The opinion would be easy to write precisely because current doctrine has broken loose from the underlying values of the First Amendment.
- Current caselaw maintains that attempting to “level the playing field” is unconstitutional.
- Over the past generation, conservative majorities on the Court have systematically undermined the idea that the First Amendment relates to democratic self-government and civic equality.
He points to the Buckley decision, the 1976 case that tossed out the first attempts, post-Watergate, to reign in corporate interference in elections, which said, “The concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.”
And that’s where Epps thinks we went off the rails. Because the court made no attempt to justify that statement. And anyone with 1/3 of a brain can immediately come up with a bunch of really cogent counter-examples, which Epps proceeds to do:
- Imagine a meeting of your county board, with an open comment period for citizens to discuss some pending measure. A local organization – let’s call it “Citizens United” – signs up to speak first. Then, when its allotted time is up, the organization’s representatives refuse to yield the microphone. Citizens United has more to say, they argue; government cannot “silence” them to allow others to talk. Other citizens are still free: They can shout their comments from the back of the chamber or fold notes into paper airplanes and toss them in the direction of the board members.
- Or imagine that Citizens United members come to the meeting with privately purchased bullhorns. After their representative has spoken, they use their bullhorns to drown out other speakers. If the chairman told them to stop, would this be “wholly foreign to the First Amendment”? Wouldn’t it be ordinary democratic procedure, designed to make sure that as many points of view as possible are heard?
Funny thing, though… the court is perfectly willing to block out exceptions when it comes to “persons” who don’t happen to have extensive market capitalization and powerful boards of directors – you know, the ones like you and me, with social security numbers and families and… brains.
Like Morse v. Frederick, where the court said free speech didn’t protect a kid holding a “BONG HiTS 4 JESUS” banner while NOT at school from being suspended, or Garcetti v. Ceballos where free speech didn’t protect a cop from harassment by his boss for testifying truthfully under oath in a way the boss didn’t like. As Epps puts it, “…For all the chest-thumping about free speech, this Court is more and more solicitous of the First Amendment rights of corporations and powerful organizations and contemptuous of the individuals they seek to silence.”
There’s lots more… read the whole article at The American Prospect.