Today the U.S. Supreme Court announced its opinion in Citizens United v. Federal Election Commission, where it held that any legal limit on corporate spending during political campaigns amounts to a violation of free speech. I haven’t read the whole thing; I just skipped to the part that interests me, which is the idea that corporations are “persons” within the meaning of the First Amendment. Prior opinions, including opinions by Rehnquist, had held that Congress could limit corporate campaign spending because corporations had unique advantages that allow them to raise much larger sums of money than individuals can, and therefore they are qualitatively different than the sort of persons the Framers contemplated when drafting the bill of rights. Corporations have, for example, perpetual life and limited liability, neither of which are available to you or me. The majority in Citizens United said these advantages were irrelevant to First Amendment protection, so corporations can now spend however much they want from their general treasuries on political purposes.
This is a bad opinion. This is a really, really bad opinion. Justice Stevens’s dissent explains how there is no reasonable way to construe the language of the First Amendment, or the Court’s historical free speech jurisprudence, to hold that artificial persons with specially created legal advantages designed for the purpose of facilitating the accumulation of money have the same right to use that money in the political arena as REAL persons who do not have those legal advantages.
The whole reason campaign spending is equated with free speech in Buckley v. Valeo is that the Court concedes that spending is an inevitable part of the speech process. You must have money to speak, money is a prerequisite to effective political speech. However, now you create a new class of citizens with special rights to accumulate money. This is fine for economic purposes, but there was a reason there were barriers erected between the corporation’s economic and political roles. These special rights translate into special political rights without those barriers. It is only a little hyperbolic to say that the Court’s decision today has effectively turned all non-corporate Americans into second-class citizens.
And remember that the real, actual persons in a corporation (shareholders and officers) have their own, already existing right to free speech. The corporate form does not prevent them from engaging in political activity.
This case seems to me to be a classic case of a particular ideology – libertarianism – trumping the historic emphasis on legal realism in American jurisprudence. More than any other recent case that I know of, this case strikes a strong resemblance to Lochner v. New York, where the Court used a then-fashionable ideology to re-interpret the 14th Amendment. Just as Oliver Wendell Holmes said in that case “The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics”, in this case, we should say that Ayn Rand did not write the First Amendment.
Eventually, American jurisprudence repudiated Lochner. I suspect Citizens United will eventually will be derided to the same degree. This is bad jurisprudence, and a particularly nasty case of political ideology trumping fidelity to reasonable construction of the law.