In 2010, the United States Supreme Court ruled in the case of Citizens United v. Federal Election Commission (FEC). During the presidential nomination cycle in 2008, partisan organization Citizens United produced a film that lambasted Democratic presidential candidate Hillary Clinton. When Citizens United was legally barred from airing the film within 30 days of the Democratic primaries, the group sued the FEC claiming its First Amendment rights were being suppressed. Citizens United won with a 5-4 vote. The ruling overturned legislation that banned airing certain ads immediately preceding elections, and it prohibited the government from regulating contributions made to independent organizations. In other words, so long as organizations like Citizens United do not “coordinate” with political campaigns directly, the government can no longer restrict contributions made by these organizations. Consequently, unregulated Super PACs have emerged, many funneling millions into political processes and, in so doing, creating communications that differ from campaign ads only by source of origin, not by content and certainly not by effect. This Supreme Court decision was justified by citing the First Amendment; however, corporations are inherently different from people, and the First Amendment should not be extended to them as though these differences and the threats imposed by these differences do not exist. In essence, the dissenting opinion of the Supreme Court in Citizens United, presented by Justice John Paul Stevens, offers a better argument than the majority opinion, presented by Justice Anthony Kennedy.
Arguing in favor of extending the First Amendment to corporations and other groups, Justice Anthony Kennedy makes a fine case for free speech in his writing of the majority opinion. With appropriate focus on pre-election communications, Kennedy argues that the time period immediately preceding an election is critical for political messages. It is this window before voting when efficacy is maximized as a result of increased urgency as the election approaches. By restricting political communications during this period, argues Kennedy, society is denied access to a free marketplace of ideas when such a marketplace would be most useful. Undoubtedly, most advocates of free speech would concede that an open exchange of opinions benefits a democratic society. Unfortunately, Kennedy’s argument does not acknowledge the enormous differences between the opinions of people, who innately have a rich variety of interests, and the opinions that serve the fundamentally narrow interests of for-profit corporations.
In capitalist societies, most corporations exist solely to generate profits, a noble goal if not for the ethical concerns that abound. For example, Wal-Mart executives have been excoriated for allegedly urging their under-compensated employees to apply for financial assistance programs, a clear tactic to defer costs from the corporate giant onto the government. Looking further back, corporate greed inspired President Franklin D. Roosevelt to install a federal minimum wage to effectually balance the interests of the working people with the interests of corporations. Roosevelt’s “New Deal” also set other mandates for employers, including the introduction of child labor protection laws, signifying the conflict between the will of corporations and the will of the people. As should be well understood, the interests of corporations are often incompatible with the interests of the rest of society. We cannot surmise, then, that an open marketplace of ideas will benefit a diverse populace when profit-pushing corporate avatars help influence that marketplace.
To be fair, there are organizations that contribute to the public sphere and to the whole of society in positive ways. Sierra Club, for example, favors politicians that oppose environmental detriments, and its support is presumably lent irrespective of financial gain. Justice Kennedy explicitly refers to Sierra Club and similar organizations to demonstrate the virtue of upholding free speech for non-person entities. While assessing Justice Kennedy’s argument, we must understand why he exemplifies such groups.
As non-profits, organizations like Sierra Club are not designed to indulge in profit-seeking. Knowing this, we can infer that the interests of some incorporated non-profits expand beyond increasing revenue and help represent more varied perspectives. This would seem to dismantle the fears expressed previously of myopic corporations exerting enormous influence. Unfortunately, non-profits also leave unanswered some important ethical questions. Consider that Super PACs are often eligible to file as non-profits, which many have done.1 In doing so, Super PACs deceptively detach themselves from their donors, even though they are merely manifestations of the interests of those donors. This is so because non-profits generally do not have to disclose the identities of the people or the businesses from which their contributions are made. Super PACs registered as non-profits are thus able to secretly take money from any source, including foreign companies with questionable motives. Consequently, the donor lists of many influential Super PACs are protected from public scrutiny at the expense of that very public. Justice Kennedy’s argument does not directly address the distinction between non-profits and for-profit corporations, nor does it address concerns about the lack of transparency that plagues multi-million dollar Super PACs.
Justice Kennedy’s argument, though masterfully conveyed, is most culpable for being unrealistic. His argument applies ideal concepts to an imperfect system. In an idealized society, there would exist an inclusive marketplace in which all opinions are fairly represented and considered. In such a setting, even for-profit corporations could participate without threatening the integrity of the political sphere because all opinions would have the opportunity to influence based on their perceived merits to society. Clearly, this world is hypothetical. It is in this utopia, not our reality, that Justice Kennedy’s argument is most appropriate. We are doing a disservice to society by grossly distorting it as though it were free from imbalance. In reality, ours is a system in which money buys access to mass media, and thus the wealthy invariably have more freedom of expression than do those with less money. Regulations, which Justice John Paul Stevens of the dissenting opinion supports, are necessary to help equalize expression and influence during public election cycles.
Justice Stevens creates a strong argument by calling out the slippery slope upon which the majority opinion unsteadily rests. Writes Steven: “Although they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office. Because they may be managed and controlled by nonresidents, their interests may conflict in fundamental respects with the interests of eligible voters. The financial resources, legal structure, and instrumental orientation of corporations raise legitimate concerns about their role in the electoral process.” We must consider both arguments and ask ourselves some very important questions: If corporations have First Amendment rights as though they are people, what other rights are they entitled to? Should corporations be allowed to bypass supporting or opposing political candidates completely and just run for office themselves? Should corporations be given a vote during public elections? Rational people are likely to agree that the answer to the last two questions is absolutely not. The issue is that the argument presented by Justice Kennedy does not answer the first question. Instead, it leaves the question lingering uncertainly in the air. In advocating for regulations like those established by the 1907 Tillman Act, Justice Stevens gives us more certainty in answering that question.
Corruption is an underlying controversy in a system devoid of regulation. Quid pro quo, alternatively expressed by the adage “you scratch my back and I’ll scratch yours,” is harmful to democracy whether real or perceived. One illustration of this is voter turnout in the recent presidential nomination processes. From the very first caucus in Iowa, voter participation has been record-breaking on the Republican side as many voters cast overwhelming support for current front-runner Donald Trump.2 It is not a coincidence that voter turnout is high in an election that offers a self-funded candidate, a billionaire alleging that he is impenetrable to establishment corruption. As has been proven by these broken records, voter turnout increases when people believe in the legitimacy of elections. If this is so, then the opposite is also true: Voter turnout is low in elections that lack legitimacy. Even the perception of quid pro quo can deter the public from participating, causing harm to democracy. Justice Kennedy’s position seems to offer little defense against the likelihood of corruption, whereas Justice Stevens’ offers a reasonable solution in the form of regulation.
In fairness, Justice Stevens’ argument missed the mark on one occasion—it did not sufficiently address an excellent observation imparted by Justice Kennedy. The latter rightfully points out a hefty inconsistency in the pre-Citizens United system of regulation. That is, news corporations were immune to certain restrictions simply because they were news sources. Justice Kennedy calls attention to this hypocrisy, pointing out that a “conglomerate that owns both a media business and an unrelated business” would be allowed to use its connection to media to promote its business interests. Meanwhile, a different corporation “with an identical business interest” could not promote its interests to the same extent if it did not have connections to media. Justice Stevens clearly adopts the position in favor of the Federal Election Commission, which advocated for the existing regulations to remain intact. Yet those regulations did not protect society from the biases promulgated by mass media, and Justice Stevens does not aptly address this inconsistency. Overall, however, Justice Stevens provides a stronger argument than Justice Kennedy. As the former writes, Citizens United was a turning point in the conflict between “assertion over tradition, absolutism over empiricism, rhetoric over reality.” Unfortunately, it was a turning point that has allowed corporations to gamble heavily in political decision-making, and We the People are the ante.