January 2010

Citizens United v. FEC raises fundamental questions about our Constitution, and our democracy. It is with good reason that the Court's failure to decide the case to date has received more press than most actual Supreme Court decisions receive. Citizens United argues that corporations have the same constitutional rights as the American people do to spend money on elections, and that the government may not limit corporate spending on elections. If the Court agrees, our democracy will suffer for it. Obama's 2008 fundraising records could easily have been dwarfed by a single mega-corporation willing to divert a tiny fraction of its profits to the election of its preferred candidate.

If the Justices decide the case based on the Constitution's text and history, Citizens United's sweeping claim would certainly be rejected. In CAC's forthcoming report, "A Capitalist Joker": Corporations, Corporate Personhood, and the Constitution" (released as a discussion draft in December and available here), we show that, from the very beginnings of our Nation, the constitutional protections available to living persons and corporations have been fundamentally different. While James Madison wrote the Bill of Rights to protect the "great rights of mankind," corporations did not have any right to exist, let alone the same fundamental rights as "We the People." From the founding on, as Chief Justice Marshall explained, corporations were "artificial being[s], invisible, intangible, and existing only in the contemplation of law" and "possess[ing] only those properties which the charter of creation confer . . . . " To be sure, corporations received a host of special privileges that enabled them to succeed in business and some limited constitutional protection for their property rights, but these corporate attributes subjected them to greater government regulation, not less.

The distinctions between citizens and corporations are most pronounced when it comes to elections. The Constitution protects the rights of citizens to vote through constitutional amendments that no one could reasonably read to protect corporations, and prevention of improper corporate influence over the electoral process has been a pillar of our democracy as far back as 1833, when President Andrew Jackson castigated the Bank of the United States for its political spending on elections. In 1907, Congress enacted the Tillman Act and wrote into federal law a sharp distinction between the campaign finance laws applicable to living persons and those applicable to corporations, with the latter strictly regulated to prevent corruption of the electoral process. That sharp distinction has been there ever since, repeatedly reaffirmed by Congress and upheld by the courts.