In our final article we bring the fourth and fifth common misunderstandings about Citizens United.
Misunderstanding 4: Taking away personhood from corporations would stop the huge flow of cash to influence elections.
In 1976, the Court stated in Buckley v. Valeo that “political spending and political speech are inextricably interrelated and that the former cannot be restricted without adversely affecting the latter” basically says that money is speech, and therefore government regulation of that money being used is prohibited.
Individuals may spend unlimited money individually, candidates may spend unlimited amounts of their own money, and groups such as partnerships may be formed to spend unlimited money. There is nothing sacred about a corporate form. As the Supreme Court said, “Virtually every means of communicating ideas in today’s mass society requires the expenditure of money.”
There is also another issue that would arise if corporations were to be denied personhood—it might not solve the problem. Unlike the Second Amendment, the First Amendment does not say anything about the right being held by people or persons. At least one theory of free speech is that the right is held by the listener, not the speaker. This is based on the concept that the First Amendment protection of free speech is a protection of a “marketplace of ideas.” And that means that a listener’s right to access corporate speech would still be protected. If you no longer allow the Sierra Club to talk about conservation because the Sierra Club is a corporation, you are limiting access to ideas based on who is speaking.
Misunderstanding 5: Taking away personhood from corporations would be good because corporations would only have the rights that Congress gives them.
This would be a disaster. This would not just affect PACs and ExxonMobil, but it also would affect the New York Times, Planned Parenthood, and the local dry cleaners. Congress would have no restraints on its ability to pass laws that could say no nonprofit may advocate for abortion rights or against abortion rights. What prevents it now is the First Amendment.
The First Amendment is not just free speech. It also includes freedom of association, freedom of religion and freedom of the press.
This approach would also diminish the 4th Amendment (freedom from unreasonable search and seizure)—do you really want a police officer to have unfettered access to corporate documents? Should the police be able to demand bookstores’ records of sales? Your club’s membership records? Anyone’s telephone company records?
What is the solution? The one thing that is clear is that whatever the solution is, it will require a constitutional amendment, and a lot of work making that constitutional amendment pass both the House and the Senate and then ratified by 3/4s of the states ahead of us all. Probably the solution will not be anything that could make a catch phrase although looking more closely at the concept that money is speech seems promising. But before we jump on that bandwagon, let us be sure the cure won’t be worse than the problem.
As it stands today, even if corporations and individuals were limited in contributions candidates can spend limitless amounts of their own and other people’s money provided they do not take money from the federal government. There is little incentive for candidates to place themselves under the control of the federal government.
This is where we stand then: individuals and corporations should be able to contribute limited amounts of money in to political campaigns and spend limited amounts on campaigns and “issue ads.” But it is important to create limitations that are “content neutral” and not so limiting as to squelch real debate. There are many issues entwined in the problem of huge amounts of money flooding campaigns. The personhood of corporations is just one of them and the value of corporate personhood lies in many areas including the right to free speech and freedom of the press.
To resolve this issue without damaging basic rights will take time and finesse. Understanding the path that brought us here is one of the first steps to finding our way back to a better electoral process.
-Damjan Zdravev, Contributing Writer