Some Questions for “Progressives” Carping about the Citizens United Campaign Finance Case
The Supreme Court’s decision in Citizens United v. FEC has generated a great deal of uninformed, and sometimes hypocritical, whining. In Citizens United, the Supreme Court held that people organized in the corporate form have the same First Amendment rights they enjoy when they organize in other ways.
Some opponents of the decision are even supporting a constitutional amendment to reverse it. Before we take them seriously, though, they need to answer some basic questions:
* You say you oppose corporate “personhood.” Well, okay. So is the government wrong to impose taxes on corporations as separate “persons?” Should we abolish the corporate income tax, for example, and special corporate reporting regulations?
* If corporations have no First Amendment rights to spend money on politics, does that mean the New York Times corporation has no constitutionally protected right to freedom of the press? That MSNBC has no constitutional right to freedom of speech? May Congress ban them from spending money to broadcast their praise or criticisms of political candidates? Should incorporated government entities, such as state university systems, be banned from lobbying? Or is it just corporations you disagree with that have no First Amendment rights?
* Was the liberal 1958 Supreme Court decision protecting the First Amendment rights of the NAACP membership corporation wrong? In other words, was the State of Alabama correct in arguing that the NAACP had no First Amendment rights protecting the NAACP from state regulation? If the NAACP holding was correct, then why is it wrong for Alabama to regulate speech by the NAACP membership corporation but okay for the U.S. to ban speech by the Citizens United membership corporation? Is it because the NAACP is liberal and Citizens United is conservative?
* If you object to the Citizens’ United decision being applied to state as well as federal statutes, do you also object to 80+ years of “progressive” Supreme Court cases ruling that the First Amendment applies with as much force to the states as to the federal government?
The ironic fact is that the corporate finance holding in Citizens United and its applications to state law were pretty well required by precedents built up over the years, mostly by liberal (not conservative) Supreme Court justices.
Finally: The real error in Citizens United was in the 8-1 part of the decision upholding federal campaign disclosure requirements. As Justice Thomas correctly pointed out in dissent, the right of anonymous speech (although subject to traditional defamation law) clearly is part of the First Amendment—think, for example, of the pseudonymously-written Federalist Papers. As the U.S. Supreme Court has recognized in other contexts, disclosure of members’ names and contributions has an unconstitutional “chilling effect” on speech because it can and does enable those in power to retaliate personally. Also, disclosure encourages people to consider arguments based on the identity of the arguer, rather than on their intrinsic merits.
In private life, Rob Natelson is a long-time conservative/free market activist, but professionally he is a constitutional scholar whose meticulous studies of the Constitution’s original meaning have been published or cited by many top law journals. (See: www.umt.edu/law/faculty/natelson.htm.) Most recently, he co-authored The Origins of the Necessary and Proper Clause (Cambridge University Press) and The Original Constitution (Tenth Amendment Center). After a quarter of a century as Professor of Law at the University of Montana, he recently retired to work full time at Colorado’s Independence Institute.