Controversy Over Corporate First Amendment Rights

An obvious part of the debate concerning the ruling in Citizens United revolves around whether corporations should receive first amendment rights. In writing the holding Justice Kennedy stated that “Congress violates the First Amendment when it decrees that some speakers may not engage in political speech at election time, when it matters most.” Citizens United v. Fed. Election Comm'n, 130 S. Ct. 876, 925 (2010). On the other hand the dissent noted that “when [the framers] constitutionalized the right to free speech in the First Amendment, it was the free speech of individual Americans that they had in mind. Id. at 950. Justice Scalia weighed in on the debate by stating “[t]hat is no doubt true. All the provisions of the Bill of Rights set forth the rights of individual men and women-not, for example, of trees or polar bears. But the individual person's right to speak includes the right to speak in association with other individual persons. Surely the dissent does not believe that speech by the Republican Party or the Democratic Party can be censored because it is not the speech of ‘an individual American.’ It is the speech of many individual Americans, who have associated in a common cause, giving the leadership of the party the right to speak on their behalf. The association of individuals in a business corporation is no different-or at least it cannot be denied the right to speak on the simplistic ground that it is not “an individual American.” Id. at 928.

Post Citizens United it is important to acknowledge that there are differences between individuals and corporations. Individuals are born. Individuals have essentially “unlimited” means to make a living but are in large part limited to the fruits of their labor, investments and inheritances. In the context of political expenditures, each individual’s speech capabilities involve using their personal assets to contribute in a manner consistent with their political and personal beliefs. Corporations are created. Corporations have essentially “unlimited” earning potential. In the context of political expenditures, corporations’ speech capabilities involve corporations using corporate funds to “speak” for their shareholders and the corporation at large.

It can be argued that the inherit differences between individuals and corporations in their creation and capabilities suggests that additional safeguard measures are needed. The simple fact is that corporations are now permitted to use general treasury funds for political communications. The same cannot be said for individuals who use their own funds and speak only for themselves with their political contributions.

The Citizens United decision prompted calls to amend the constitution as well as various legislation and proposals including “increasing disclaimer requirements, increasing disclosure for tax-exempt organizations, requiring shareholder notification and approval, restricting U.S. subsidiaries of foreign corporations, restricting political expenditures by government contractors and grantees, taxing corporate independent expenditures, and providing public financing for congressional campaigns.” CRS Report 7-5700, Legislative Options After Citizens United v. FEC: Constitutional and Legal Issues, by L. Paige Whitaker, Erika K. Lunder, Kate M. Manuel, Jack Maskell, and Michael V. Seitzinger. See also CRS Report R41054, Campaign Finance Policy After Citizens United v. Federal Election Commission: Issues and Options for Congress, by R. Sam Garrett.

It is still unclear which of these or other safeguards will be implemented but it is fairly certain that the calls will not go unanswered. There is a generalized concern that corporations may not act in the best interest of shareholders. There are also concerns involving contributions from foreign corporations and corporations holding government contracts. It is clear that the debate surrounding Citizens United will continue well into the future.