This post is part of an ACSblog symposium marking the one-year anniversary of the landmark decision in Citizens United v. FEC. The author, Elizabeth B. Wydra, is chief counsel for the Constitutional Accountability Center. CAC filed an amicus brief in Citizens United with the League of Women Voters.
It has been just over a year since a 5-4 majority of the Supreme Court ruled in Citizens United v. Federal Election Commission that corporations have a constitutional right to spend unlimited amounts of money from their general treasuries to influence our Nation's elections. With President Obama scheduled to give his State of the Union address tonight, it is also, of course, one year since the President spoke out against the Citizens United decision (and in return got the infamous headshake from Justice Samuel Alito).
The American people were with Obama last year, and it appears that, a year later, the American people still agree with the President's denunciation of Citizens United. According to a new poll, "[f]ully 79% of voters support passage of a Constitutional amendment to overturn the Supreme Court's decision in the Citizens United case and make clear that corporations do not have the same rights as people." The problem of corporate money in the political system was made far worse by Citizens United, to be sure, and "We the People" might indeed need to amend the Constitution to right the wrongs wrought by the Supreme Court's decision. But the fundamental problem of Citizens United - the idea that artificial corporate entities enjoy the same constitutional rights that living, breathing human beings do - doesn't come from a defect in the Constitution that requires a correction. It stems instead from the Court's conservative majority's fundamentally flawed view of the Constitution and corporate personhood.
As detailed in a Constitutional Accountability Center report entitled "A Capitalist Joker: The Strange Origins, Disturbing Past and Uncertain Future of Corporate Personhood in American Law," Citizens United and its view of corporate rights cannot be squared with the Constitution's text and history or with Court precedent.
The Constitution's text reflects a fundamental difference between corporations and "We the People" identified in the Constitution's preamble. While the Supreme Court has long recognized that corporations may assert certain constitutional rights, corporations have never been accorded all the rights that individuals have, and have never been considered part of the political community or given rights of political participation. The Court under Chief Justice John Marshall, and many times since, has emphasized that because corporations are artificial entities that receive special privileges such as perpetual life and limited liability, they are subject to greater regulation by the state. With respect to fundamental rights such as privacy, the Supreme Court has held that corporations do not possess the dignity interests protected by, for example, the Constitution's guarantee against forced self-incrimination. (And if oral argument is any indication, even the Roberts Court appears unwilling to give corporations rights of "personal privacy," an issue raised in this Term's FCC v. AT&T case, discussed here and here; the implications of the case for corporate personhood are addressed in CAC's brief.)
As reformers undertake to fix the post-Citizens United campaign process through the legislative process - and even through the constitutional amendment process - it should not be forgotten that we are in this mess not because of the Constitution but because the Citizens United majority interpreted the Constitution in a way that is profoundly wrong. The Constitution's text and history do not support the notion that the 1st Amendment gives corporations the right to drown out the voices of individual Americans in our Nation's elections. To the contrary, our constitutional story has been one of democratic progress, moving American democracy toward broader enfranchisement and more meaningful political participation for individual American citizens. Looking at the Constitution as a whole, the narrative arc of expansive democracy is clear: the 15th Amendment guaranteed the right to vote free from racial discrimination; the 17th Amendment gave the people in each State the right to vote for U.S. senators; the 19th Amendment extended the franchise to women; the 24th Amendment freed the federal election process from poll taxes; and the 26th Amendment secured the right to vote for young adults.
Citizens United does not reflect a reasonable interpretation of our Constitution's text and history. It can and should be overturned, and I hope that a majority on the Supreme Court sees that sooner rather than later.
In the meantime, progressives should recommit to ensuring that judges who will respect our entire Constitution, with all its progressive promise, are placed on the bench. While President Obama is unlikely to mention Citizens United again in this year's State of the Union address, he could take the opportunity to urge the Senate to take swift action to confirm his well-qualified nominees for the judicial vacancies that have been left unfilled due to political gamesmanship. And given Chief Justice John Roberts's recent statement that there is "an urgent need for the political branches to find a long-term solution" to the problem of blocked judicial nominations, that's one line that would be more likely to be met with silent nods of agreement than grumpy headshakes from the Supreme Court Justices who choose to attend tonight's State of the Union address.