On 21 January 2010 the US Supreme Court issued its long-awaited decision in the case of Citizen’s United v. Federal Elections Commission. Two months have passed and still most people are either ignorant of the facts of the decision or are deliberately misrepresenting same. Experience leads me to presume the later.
Since that day we have witnessed President Obama’s unprecedented lack of decorum and common decency with respect to the members of the court along with an unending flurry of ideologically-induced rhetoric from like-minded journalists, educators and pundits. All maintain erroneously that the decision was a gift to corporate special interests. Some have gone as far as to say the court surreptitiously ruled that corporations were individual persons.
Simply stated both positions are entirely at variance with the truth.
Firstly, the case-in-chief originated with a dispute arising from what Citizens United argued was a violation of the 1st Amendment right to free speech. Such violation grew out of the Bipartisan Campaign Reform Act of 2002(aka, McCain-Feingold). Citizen’s United was the producer of a film which delineated acts of alleged corruption on the part of then-Presidential hopeful, Hillary Clinton. The Federal Elections Commission barred CU from marketing the film under provisions of McCain-Feingold which effectively proscribed corporate advocacy for or against a candidate for office or a political cause on the eve of an election.
Since that day we have witnessed President Obama’s unprecedented lack of decorum and common decency with respect to the members of the court along with an unending flurry of ideologically-induced rhetoric from like-minded journalists, educators and pundits. All maintain erroneously that the decision was a gift to corporate special interests. Some have gone as far as to say the court surreptitiously ruled that corporations were individual persons.
Simply stated both positions are entirely at variance with the truth.
Firstly, the case-in-chief originated with a dispute arising from what Citizens United argued was a violation of the 1st Amendment right to free speech. Such violation grew out of the Bipartisan Campaign Reform Act of 2002(aka, McCain-Feingold). Citizen’s United was the producer of a film which delineated acts of alleged corruption on the part of then-Presidential hopeful, Hillary Clinton. The Federal Elections Commission barred CU from marketing the film under provisions of McCain-Feingold which effectively proscribed corporate advocacy for or against a candidate for office or a political cause on the eve of an election.
The issue before the court was specifically one of free speech and equal protection. Therefore the court was asked to rule whether the rights of the individual supersede the government’s desire to limit speech by particular individuals. The Supreme Court ultimately concurred with the argument of Citizen’s United and in-so-doing, reversed the precedent established in Austin v. Michigan Chamber of Commerce, 494 U.S. 652 and partially reversed the decision in McConnell v. Federal Election Commission, 540 U. S. 93, 203–209
"Premised on mistrust of governmental power, the First Amendment stands against attempts to disfavor certain subjects or viewpoints or to distinguish among different speakers, which may be a means to control content. The Government may also commit a constitutional wrong when by law it identifies certain preferred speakers. There is no basis for the proposition that, in the political speech context, the Government may impose restrictions on certain disfavored speakers. Both history and logic lead to this conclusion." (CITIZENS UNITED v. FEDERAL ELECTION COMMISSION, No. 08–205)Did the court rule that corporations were individuals as a prerequisite to issuing its decision on the merits of the case?
No. This issue was never before the court and therefore beyond the case at bar. The court merely acknowledged the existing standard of personage and ruled therefrom.
The personage of corporations dates back to the late 19th century. I don’t believe any of the current members of the court were on the bench at that time, appearances notwithstanding.
In short, corporate personage is rooted in the fact that individuals who suffered injury due to the acts of a corporations were precluded from bringing a cause of action against same as one may only seek recourse against an individual. As the owners and directors of the companies enjoyed the privileged of limited liability the aggrieved were left with no legal alternatives. Given the fact that the US is a nation of laws, the law had to find a means why which a corporation may be called before the court. Thus Congress forthwith deemed corporations, “individuals” and thereby made them liable for civil and penal infractions. In 1906, corporations were prohibited to donate money to political candidates (this rule was applied to labour unions in 1946) [Note: These proscriptions were never applicable to trade associations such as the American Bar Association]. It was only natural then that in 1909 the government would extend the personage of corporations so as to tax the income of corporations as individual income. Do those who object to corporate personage want also to end the corporate income tax? I think not.
Was the ruling a surrender to “corporate special interests”?
No. The rules as regards corporations in generally, includes labour unions. Unfortunately those rules have only ever been applied to for-profit corporations. In fact, the court specifically allowed such inequity when it ruled in Austin (supra) that political speech may be banned based on the speaker’s corporate identity. Therefore the ruling in Citizens United v FEC lifted all legal restrictions against both for-profit corporations and labour unions.
Labour unions have always been able to avoid the restrictions of law due to the fact that they enjoy unparalleled political and legal protection. Moreover these rules do not apply to films and so-called “news casts” which advocate specific leftist issues and/or criticise non-leftist politicians. While ideologues rail against “special interest” they remain utterly silent in the case of unions and certain trade organizations such as the American Bar Association which expend hundreds of millions of dollars on political causes and lobbying on behalf of the Democratic Party and other leftists organizations and issues. The caterwauling in the present case exists because this decision places for-profit corporations on equal footing once again with unions and other leftist organizations.
Are corporations now permitted to contribute unlimited amounts to politicians?
No. Corporate individuals are still limited by existing law including, but not limited to, limitations of McCain-Feingold which prohibit giving directly to candidates. In 1976 in the matter of Buckley v Valeo, 424 U.S. 1, the court found that restrictions on political contributions were lawful (Restrictions on political expenditures in general were ruled unconstitutional. This remained the law until McCain-Feingold.) The court was not asked to consider this restriction and justly avoided taking up the issue. The ruling only applied to an individuals' right to expend his/her own resources as he/she prefers.
It’s shameful that so many Americans lack a basic understanding of the Constitution. Even more shameful that so many seem willing to ignore the Constitution whenever its application benefits their political opponents or impedes their own political agenda. Their guiding philosophy was best articulated by the late Senator James William Fullbright (D-Arkansas) who referred to the Constitution as an antiquated document which limits his ability to do for the people what he knows is best. All Americans, including the sanctimonious lot of Pennsylvania Avenue, would be well-served by learning a bit more about facts before stoking the embers of political deceit.