Democracy For Sale

An ambivalent analysis of Citizens United

by by Jeanne Jeong

illustration by by Annika Finne

A clever sign stands out among the 99 percemt. Provocative and pointed, it reads, “I refuse to believe corporations are people until Texas executes one.” While general anti-corporate commentary has captured the streets, the Internet, and the mood of progressive solidarity behind #occupy, the slogan's sense that corporations can't possibly be people enjoys privileged appeal. Likewise, its jocular cousin asks, “Would you let your sister marry a corporation?”

Last month, Princeton professor and public intellectual Cornel West spoke out on this issue. Arrested for occupying the steps of the Supreme Court, West blamed the Citizens United v. FEC decision of January 21, 2010 for opening the dams to corporate takeover of government. The famous decision, narrowly passed by a 5-4 vote, ruled that First Amendment rights extend to corporations and unions as well as individual people. Arguing that spending money can be an act of speech, the Court struck down a provision in the McCain-Feingold Act that limited corporate spending on election-related communications 60 days before an election.

For the protestors on Wall Street, the peculiar notion of “corporate personhood” invites anger, bewilderment, and an uncomfortable sense of injustice. Their intuitive suspicion is that the corporate influence in politics that spawned “too big to fail” and loopholes for the wealthy is entangled with this view that corporations are people. Easily converted into witty one-liners, this intuition stems from the sneaking hunch that Goldman Sachs is different, somehow, from you and me.

Familiar metaphors
Citizens United has produced two catchphrases that have since shaped contemporary political rhetoric—“corporations are people,” and “money is speech.” Unpalatable to most Americans, these ideas provoked public backlash, ranging from mild distaste for corruption, to visceral rejection. An ABC News/Washington Post Poll released weeks after Citizens United found that “80 percent of Americans opposed the decision, including 65 percent who 'strongly' oppose it.” Perhaps most notably, disapproval crossed party lines. Traditionally unfriendly to corporate power, many members of the liberal left predictably expressed their opposition to the ruling. Even President Obama, in a rare criticism of the Court, reproached Citizens United in his State of the Union address in 2010. More surprisingly, however, according to the same poll, 73 percent of those who agreed at least somewhat with Tea Party views disapproved of the loosening of spending regulations. In a political climate rife with heated partisanship, the mutual outrage of Democrats and Republicans on this issue is unusual.

Yet despite what such shared public sentiment might imply, the ideas of corporate personhood and money-as-speech are neither novel nor baseless. From the nation's early legal history, corporations have enjoyed at least some of the same rights as natural persons in ways we now view as rather uncontroversial. In the 1819 case, Dartmouth College v. Woodward, the Supreme Court recognized corporations' right to make and enforce contracts. Although different justices' views on the personhood debate have since oscillated, corporate rights have long served a practical, necessary purpose. Corporate personhood considers corporations as groups of individuals exercising their rights to associate with others, protecting them from excessive government intervention. What appears to be the more pressing question facing the public now is one of degree, not absolutes. It asks to what extent corporations should receive protections, not whether they should receive any protections at all.

The idea that money is speech has also been present throughout American constitutional history. In the 1976 case, Buckley v. Valeo, the Supreme Court ruled that some parts of a law outlawing campaign communications made independent of candidates violated the First Amendment right to speech. In doing so, the ruling included spending in a broader category of political expression. Though it held that restrictions on individual contributions to candidates did not violate the First Amendment, the majority decided that limiting expenditures by candidates themselves violated free speech. Extending the Court's logic suggests that money has an expressive quality. In short, it's a form of speech.

Both of the ideas are dubious. In his dissent to Citizens United, Justice Stevens notes “...corporations have no consciences, no beliefs, no feelings, no thoughts, no desires... they are not themselves members of 'We the People' by whom and for whom our Constitution was established.” With the #Occupy movement targeting big business and the financial sector, corporate personhood appears in the public eye as the greater of two evils behind Citizens United. After all, corporations are almost always wealthier than individuals. Even worse, they're often considered profit-seeking behemoths unconcerned with the general welfare of those citizens of ordinary means.

Begrudging admittance 
Those opposed to Citizens United fear that by extending the free speech rights of corporations, the ruling will drown out the speech of average citizens. Before elections, corporations will boast unfair advantages in the game of buying and selling politicians' limited attention and time, especially since the financial sector already held a strong lead before the ruling. Post election day, politicians backed by these deep pockets will then listen primarily to the voices of big business. Supporters of Citizens United point out that while corporations tend to support the right, unions and their leftist counterpart are also free to run ads to the benefit of certain parties and candidates. But it's a well-understood fallacy that corporations and unions will have equal opportunity in the corrupt exchange of crony capitalism. A potential remedy for the decision's partisan effects, critics propose, is to pass a Constitutional amendment abolishing corporate personhood.

The commotion surrounding Citizens United, along with its seizure by the #Occupy movement, creates an illusion of urgency and momentousness to the cause. Not all of that sense is undeserved. Yet the shallow implication that this case alone opens the floodgates to masked bribery and unscrupulous governance is misguided. American democracy was far from perfect before the ruling; the pampering of banks in the financial crisis should serve as clear evidence of that. Certainly the Citizens United case is in part a blow for that imperfect democracy, but the root of that blow lies primarily in the assumption that money is speech, not that corporations deserve some protection.

The quintessential corporation may evoke imagery of unfeeling skyscrapers and airy boardrooms filled with profit-hunting, dark-suited businessmen. Corporations of this sort cause oil spills and take weeks to express any inklings of true remorse. They force hometown mom-and-pop stores to board their windows. They offer hotel lodging prepared by underpaid workers who are in turn harassed for union organizing.

At the same time, corporations of another sort exist. For example, there are those that protect civil rights or advocate for women's rights to choose and provide reproductive and maternal health services. Indeed, the American Civil Liberties Union is incorporated, as is Planned Parenthood. Like Citizens United, Inc., the ACLU and Planned Parenthood are non-profit corporations, though they sit on the other side of the political fence. Ira Glasser, former executive director of the ACLU, cautions against unequivocally demonizing corporations. Glasser cites a 1972 case that arose when the ACLU was prevented from advertising in the New York Times, because it was too critical of then-President Richard Nixon. The ad attacked Nixon’s opposition to school busing for integration.

If corporations weren't protected by the First Amendment at all, the government could hardly be restrained from limiting their advocacy. Whether that advocacy is for the tobacco lobby or for an anti-smoking campaign, potentially unbridled government interference seems dangerous, especially considering that these organizations are in many ways, associations of individuals expressing common views. Considering Citizens United in this light, restricting the speech of some corporations and not others is unfair, but restricting the speech of all limits the viewpoints accessible to the public in the crucial days before an election.

Cleaning up
The potential flooding of airwaves by corporate-funded ads is an egregious consequence of Citizens United, as is the new allowance of SuperPACs, which can use unlimited donations to produce attack ads and other communications. But these are not problems inherent in the notion of corporate personhood. What Citizens United does that is so disagreeable is combine the two concepts, corporate personhood and the metaphor that money is speech, into one decision. The fact that corporations might need First Amendment protections might be less controversial taken alone. That those rights extend to spending unlimited amounts of money, an area in which corporations clearly have an advantage over ordinary citizens, is more offensive. Wealthier citizens by no means have more to say than the poor or disadvantaged. Nor are they in greater need of having their interests represented.

Rejecting money as speech and admitting some aspects of corporate personhood would present a new, much-improved paradigm for clean elections. If money isn't speech, for-profit or advocacy corporations—as well as wealthy candidates and individuals—will have to exercise their First Amendment protections only through real speech that's not contingent on social class or personal wealth. Eliminating corporate rights won't prevent politicians from pandering to the business elite as long as spending is considered a fundamental right of individuals and PACs. Only through regulating potential corruption by dollars, odious to a democracy of equals, will the system force politicians to pay attention to their constituents, not just their constituents who pay.

JEANNE JEONG B ’12 thinks that if corporations are people, they should probably pay more taxes.