The Supreme Court recently held in Citizens United v. Federal Elections Commission that corporations had a First Amendment right to spend money to support or oppose political candidates. The Court struck down federal laws regulating independent political advertising by for-profit and non-profit corporations before an election even as they reaffirmed rules about disclosure and disclosures for ads and against direct corporate giving to candidates.
The court assumed if a corporation could not engage in political speech then neither could major media outlets who advocate for or against candidates via endorsements, opinion columns, etc., because they are themselves corporations. Justice Kennedy speaking for the majority: “The Framers may have been unaware of certain types of speakers or forms of communication, but that does not mean that those speakers and media are entitled to less First Amendment protection than those types of speakers and media that provided the means of communicating political ideas when the Bill of Rights was adopted.”
The major problem with Citizens United and all post commentary is the fact there never was a Federal First Amendment issue involved in the controversial McCain-Feingold Act. By arguing McCain-Feingold violated the First Amendment ended up turning the entire issue upside down while ignoring major points of constitutional law. Yes, McCain-Feingold is unconstitutional but not because of the First Amendment, but because of Congress’ lack of authority over regulating pre-election activities.
What purpose did the First Amendment serve under the Federal Constitution? James Madison said it served as proof “that no power whatever over the press was supposed to be delegated by the Constitution, as it originally stood; and that the [first] amendment was intended as a positive and absolute reservation of it.”
This means Congress never possessed any lawful authority to regulate speech or the press in the public sector within the several States, and thus, had no constitutional authority to pass the McCain-Feingold Act. Some might argue the Constitution gives Congress the power to alter the regulation of times, places and manner of holding elections, and therefore can regulate electioneering. If one wanted to take such an idea, seriously, they would find the “manner” the Constitution speaks of relates strictly to determining whether votes would be by paper ballot or viva voce and not the regulation of pre-election activity.
In other words, one would never find an ounce of authority to regulate the financial activities of an election within each of the States. On the other hand, no Constitutional provision prevents States from imposing restrictions on corporative spending on any candidate within their limits. A State could enact its own McCain-Feingold Act and it would be free of federal constitutional objections.
I like to add that it is silly to argue how a corporation might be considered a “person.” Whatever rights a corporation might have depends on the laws they are created under. Corporations do not vote; they do not serve time in prison; they don’t sit on juries or hanged for high crimes. In other words, corporations are formed as business entities with limited liabilities and not for purposes of taking on a life of an individual person.
A corporation gives people who formed them no greater or less freedom to speak or petition government with their grievances. A restriction against a “corporation” is no restriction on individual persons. In other words, if a “corporation” is prevented by State laws from spending on political campaigns the persons who formed the corporation are still free to spend as individual persons outside of the corporate shell.
As Justice Ruth Ginsburg put it during oral arguments, “a corporation, after all, is not endowed by its creator with inalienable rights.” Justice Sotomayor was on the right track when she suggested the court should revisit the error in Santa Clara County v. Southern Pacific Railroad Company (1886) which “gave birth to corporations as persons.” Justice Sotomayor added, “There could be an argument made that was the Court’s error to start with.”
To quickly sum up, the issue here isn’t freedom of speech or of the press but one of proper constitutional authority to regulate by law how much money may be spent and by who during an election. Such authority only can found with the States and not with Congress.
Why don’t US citizens question more often the limits of federal government power?
P.A. is spot on in examining first whether Congress even has the authority to regulate money spent on campaigns.
Hamilton’s fear in Fed 84 seems to be coming true: “men disposed to usurp … might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government.”
Not only did the justices turn the particular question in Citizens Unitied on its head, but more and more we citizens are coming to see our rights as limited to the Bill of Rights while the power of the federal government otherwise unlimited. Instead of a free people living under a Constitution granting the federal governemnt few and defined powers, we are becoming a people with few and defined rights living under a federal government with nearly unlimited power over our everyday lives.
Unless you forgot, corporations are summarily “executed” for violating antitrust law.
I like to add that it is silly to argue how a corporation might be considered a “person.” Whatever rights a corporation might have depends on the laws they are created under. Corporations do not vote; they do not serve time in prison; they don’t sit on juries or hanged for high crimes. In other words, corporations are formed for very specific purposes of limited liability or tax considerations and not for purposes of taking on a life of an individual person.
I agree with that. I also agree with John Bingham who said if the constitution intended for corporations to be sued in federal courts it would had said so!
I think it may be asking too much to ask justices or scholars to look beyond the 1st amendment and consider whether federal laws are based on some delegated object invested in congress by the constitution.