In his dissent in Citizens United v. Federal Election Commission, 130 S. Ct. 876 (2010), Justice Stevens, joined by Justices Ginsburg, Breyer, and Sotomayor, justified identity-based political speech restrictions by claiming that “[c]ampaign finance distinctions based on corporate identity tend to be less-worrisome . . . because the ‘speakers’ are not natural persons, much less members of our political community, and the governmental interests are of the highest order.” 130 S. Ct. at 947. Justice Stevens’ statement underscores several assumptions that problematize an ideology supporting political-speech restriction: (1) corporations are not part of the American “political community,” id.; (2) “governmental interests are of the highest order,” id., and (3) American citizens require a heavily regulated campaign finance structure in the first place.
First, Justice Stevens presumes that corporations are not part of the American “political community” without defining that community. Later, he states that “[u]nder the majority’s view, . . . it may be a First Amendment problem that corporations are not permitted to vote, given that voting is, among other things, a form of speech.” Id. at 948. However, restricting America’s “political community” to voters is arguably underinclusive. The Center for Public Justice defines a political community as “a government accountable to citizens, and citizens under government.” “Political Community,” ¶ 1, N.D., http://www.cpjustice.org/files/01political.pdf. Despite their non-natural person-status, corporations are nonetheless citizens of the states in which they are incorporated and subject to state and federal laws. Moreover, corporations have vested interests in American politics. Congress has authority to enact economic laws that impact corporations in ways distinct from those laws’ effects on corporate owners and employees. Theoretically, directors’ required fiduciary duties should restrict corporate issue-advocacy to those issues for which corporations truly have a “dog in the fight.” Thus, it is unsurprising that, just as individuals attempt to persuade others to adopt their positions, corporations, which are legal persons, should desire and try to articulate their political self-interests to influence laws and decisions by which they must abide.
Self-interest undermines Justice Stevens’ second presumption, as well. It is unreasonable to simply assume that, in the context of election law regulation, the government’s interests are “of the highest order,” id. at 947; see also id. at 968. In response to Justice Kennedy’s criticism that the Bipartisan Campaign Reform Act of 2002 (“BCRA”), the election act at issue in Citizens, is merely an “incumbency protection plan,” Justice Stevens advocated for judicial deference due to Congress’s “wisdom and experience.” Id. at 969. So much for even feigning a system of checks and balances.
It is difficult to simply assume that elected officials are not self-interested when establishing election law. Justice Stevens even acknowledged that the Court has previously upheld Congressional regulations that limited “[g]overnment employees, but not others, from contributing to or participating in political activities[,]” id., purportedly to “help ensure that public officials are ‘sufficiently free from improper influences’ . . . .” Id. (quoting Civil Service Comm’n v. Letter Carriers, 413 U.S. 548, 93 S. Ct. 2880, 2880 (1973). Justice Stevens reasoned, however, that “when corporations, as a class, are distinguished from noncorporations, as a class, there is a lesser risk that regulatory distinctions will reflect invidious discrimination or political favoritism,” id., assuming again that the government has the most noble intentions in such regulation. See id. Admittedly, such an assumption is not entirely without precedent. As Justice Stevens recalled, America’s “‘undue influence’ cases have allowed the American people to cast a wider net through legislative experiments designed to ensure, to some minimal extent, ‘that officeholders will decide issues . . . on the merits or the desires of their constituencies,’ and not ‘according to the wishes of those who have made large financial contributions’ – or expenditures – ‘valued by the officeholder.’” Id. at 962 (quoting McConnell v. Federal Election Comm’n., 540 U.S. 93, 153, 124 S. Ct. 619 (2003)).
However, corporations are constituencies of sorts, and the election law at issue in Citizens, BCRA § 441b, id. at 881, discriminated against them, as a class, and actually evidenced political disfavor toward them. Through lobbyists and indirect financial contributions, corporations influence politicians and politicians strive to keep them happy – behind the scenes. It is not difficult to discern why politicians want to limit corporate election influence, at least in part: modern politicians collect votes by disassociating from wealth and championing the causes of “Main Street America.” Permitting corporate issue-advocacy would dangerously bind corporate interests to politicians’ platforms, thus piercing the “veil” of disassociation between them. For this American – and likely many others – the act of political disassociation from corporate America is simply that: an act.
In light of this, it only makes sense to question the final presumption underlying Justice Stevens’ statement: regulation of corporate issue-advocacy is necessary to protect the integrity of American elections. See id. at 960. However, if politicians’ disassociation from corporate America is primarily a thinly veiled act, why then should Congress, and the Court, give so little credence to Americans’ ability to discern the truth and vote intelligently in spite of it? Why do Americans tolerate such paternalism? If Americans are so inept at analyzing election rhetoric to acknowledge bias and arrive at independent opinions, then perhaps Congress should be less-concerned with regulating-away American independence and more-concerned with improving high school civics classes to provide Americans with the tools necessary to effectively exercise that independence.
Though the Citizens’ majority opinion is not without controversy, its holding nonetheless protects the Constitutional rights of all persons by refusing to eliminate those rights for some. Justice Stevens accused the Court of “dramatically overstat[ing] its critique of identity-based distinctions, without ever explaining why corporate identity demands the same treatment as individual identity.” Id. at 948. However, until the law changes, corporations are legal persons, see id. at 972, so the inquiry must shift to a critical inquiry of “why not?” Congress’s election protection should not infringe on any rights afforded to “persons”; instead, it should re-evaluate systems in place that might threaten free elections.
