Citizen’s United: SCOTUS Double-Speak

In Citizens United v. Federal Election Commission, 558 U.S. 08-205 (2010), 130 S.Ct. 876 (January 21, 2010), the Supreme Court held that the First Amendment prohibited the federal government from restricting independent political expenditures by corporations and unions.  In a 5-4 decision, the Court ruled that corporations and unions have the same political speech rights as individuals, as protected by the First Amendment.

Since decided, Citizens United has been widely condemned by a large swath of the American public, even by some who originally thought it a great victory.  In fact, I believe that Citizens United  will ultimately be known as one of the most infamous SCOTUS decisions in U.S. history, and that future Courts — or even the one as near-currently constituted — will move to curb its scope and/or overturn it altogether. Indeed, the Montana State Supreme Court has already issued a direct challenge to Citizens United, setting up another round of the same fight in the very near future.

Although not often stated as such, it seems clear that the real objection to Citizens United is the visceral sense of result orientation underlying the Court’s decision. Thus, it was correctly feared that the (fairly) predictable block of 5 conservative justices were going to find a way to lift the limitations on corporate political donations; it was simply a matter of finding a plausible justification. “Corporations are people” was the dismaying result.

As infuriating as the Citizens United is, however, it is not the ”corporations as people” excuse that I see as being the problem. The legal fiction of a corporation’s “citizenry” has been a feature of Anglo-American jurisprudence for a great while. The law wants corporations to be identifiable as belonging to one state or another for any number of important reasons, such as diversity (i.e., one means of determining Federal jurisdiction), deciding “choice of laws,” and/or the rules governing service of process.  All of these (and other) important procedural/due process considerations are determined by the “citizenship” of a corporation.

Accordingly, it is no great leap of legal fiction to go from (1) acknowledging a corporation may be deemed to a “citizen” of one state or another, to (1) treating that same corporation as being an “individual” for purposes of political action and contribution.  And yet that is not the failing of Citizens United.  The failing of the decision is, quite bluntly, that in the exercise of its “result orientation,” the Court chose the wrong result; just because a tenuous legal link could be articulated, does not mean it should have been.

Corporations and unions do not “speak,” they corrupt, or at least have the power to do so if left untrammeled.  The SCOTUS was under no compulsion to liken them to “individuals” for First Amendment purposes. There are a number of rights granted/protected by the fabulous First: A prohibition against the government establishment of religion, or abridging freedom of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. Do corporations and/or unions require these additional First Amendment protections?  If we grant them one such right, do they not then qualify for all?  Of course not, absurdity reigns.

Corporations are not “individuals,” except as to those limited legally fictitious identities that we grant them in order to serve basic jurisdictional requirements.  The Citizens United decision, on the other hand, is a travesty, a thinly disguised — or perhaps completely transparent — power-grab by the monied elite to legalize the purchase of political office. It is bad enough that now one almost need be a multi-millionaire to even qualify as a candidate for higher office; but just in case you are not, Citizens United is now available to make up the difference.


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