Frequently the most difficult legal issues arise at the intersection of two separate and distinct areas of the law. The Supreme Court’s recent much-criticized First Amendment/campaign finance decision in Citizens United v. Federal Election Commission is a good example of this.
On its face, given the facts of the particular case in front of it, the decision seems to me to be entirely correct. A conservative non-profit corporation, formed for the purpose of engaging in political speech, made a disparaging movie about Hillary Clinton and wanted to air it on cable stations during the 2008 primary election campaign. Federal law, however, prohibited such “electioneering communications” by corporations using their general treasury funds during this period. The question was whether this violated the First Amendment free speech rights of Citizen’s United. The Court answered (correctly in my view) that it did. Banning associations of private citizens from trying to convince voters to elect a specific candidate is squarely contrary to the First Amendment. As the Court noted:
the following acts would all be felonies under [the federal law]: The Sierra Club runs an ad, within the crucial phase of 60 days before the general election, that exhorts the public to disapprove of a Congressman who favors logging in national forests; the National Rifle Association publishes a book urging the public to vote for the challenger because the incumbent U. S. Senator supports a handgun ban; and the American Civil Liberties Union creates a Web site telling the public to vote for a Presidential candidate in light of that candidate’s defense of free speech. These prohibitions are classic examples of censorship.
Left here, the decision would have been both correct and measured. The notion that groups such as those mentioned above — the Sierra Club, the NRA, the ACLU — should be prohibited from expressing their views during an election campaign seems unquestionably to violate the First Amendment.
But the Court’s decision went far beyond this. Even though Citizen’s United, the group bringing the suit, would have been satisfied with a ruling that overturned the federal law only as to “nonprofit corporate political speech funded overwhelmingly by individuals,” the Supreme Court held that the First Amendment barred federal restriction on the electioneering activities of for-profit corporations primarily formed for non-political purposes. This portion of the opinion was both disappointing and wrong.
It was disappointing because after decades of conservative criticism (correct, in my view) of “judicial activism,” the new Roberts court engaged in that very thing. My view is that, for better or worse, laws enacted through the democratic process should be accorded a strong presumption of constitutionality, and should be overturned by courts on constitutional (or other) grounds only to the extent that the clearly and obviously violate a clear, well-established, and (in an ideal world) textually-based constitutional (or other) rule. The Citizens United decision fails to do this. The Roberts court had the opportunity to — and indeed, was apparently invited to — decide this case on narrow grounds that would have upheld the most important part of the federal law. By failing to do that, by failing to adhere to its professed belief in judicial restraint, it squandered an opportunity to make a hugely important point by putting its money where its mouth is.
And why was the decision wrong? Because it chose to ignore (apparently willfully) the way corporate governance operates in the real world. It is one thing to say that the First Amendment protects the rights of like-minded citizens to associate together to speak on matters of public concern. But what does this have to do with the political speech of Chevron? Individuals contributed to Citizen’s United because they wanted it to engage in a particular type of political speech. Individuals are shareholder of Chevron (frequently involuntarily, through investments made on their behalf by retirements systems) because they want to make money. Not allowing the First Amendment to distinguish between these two situations is wrong.The Court tries to address this issue in its opinion, but its treatment of the issue is lame:
The Government contends further that corporate independent expenditures can be limited because of its interest in protecting dissenting shareholders from being compelled to fund corporate political speech. … There is, further more, little evidence of abuse that cannot be corrected by shareholders “through the procedures of corporate democracy.”
It is hard to know whether the Court’s apparent ignorance of the limits of what it calls “corporate democracy” is willful or unintentional. There is no “corporate democracy”; shareholder influence over the management of corporations is largely absent, for reasons both procedural and practical. This is the key reason why the decision is wrong — it allows the assets of individuals to be used by corporations to advocate the election of candidates that some, or most, of the owners of the corporation may not support. It is hard to envision a First Amendment rationale for such a result.
In other circumstances, courts have been solicitous of protecting the rights of individual from having their money used by organizations for speech they may not support. Here in California, for example, attorneys must be members of the State Bar. The California Supreme Court has held that attorney dues paid to the State Bar cannot be used for political lobbying without individual members’ consent. Thus each year I deduct from my bar dues the amount that the bar will use to lobby. Similar arrangement exist for union members, so conservative members of a union do not have to pay to support the largely liberal political activities of the union leadership.
Here, in my view, is the legislative solution to the United Citizens decision: Enactment of a federal law that would require the affirmative consent of a majority of a corporation’s shareholders before the corporation can engage in any specific “electioneering communications.” Lesser restrictions could also be adopted (e.g., providing an opportunity for shareholders to object; rebating amounts spent on political and lobbying activities to shareholders who do not wish to support them).
Such a remedy would do away with the fundamental problem in the Citizen’s United decision: Yes, the First Amendment protects the right to associate for the purpose of political speech; but no, it should not be interpreted to require individuals to support political speech with which they do not agree.
Categories: Politics
Tags: campaign finance reform, citizens united, corporations, First Amendment, Politics, Supreme Court