By Jeffrey D. Clements, the co-founder and general counsel of Free Speech for People and founder of Clements Law Office, LLC. Clements is author of the new book Corporations Are Not People, which explores the disastrous impact of the Citizens United opinion on democracy and proposes a constitutional amendment to restore government to the people.
As the nation increasingly embraces the constitutional amendment solution to Citizens United v. FEC, a new proposition regarding so-called “corporate personhood” is emerging. It’s a proposition, which the notorious Citizens United decision actually had nothing to do with.
Last week, for example, my friend Kent Greenfield cast a skeptical eye, in an op-ed for The Washington Post, on the “anti-corporate activists” who support a constitutional amendment to reverse Citizens United. (My own view competed the next day in a Boston Globe op-edwith Congressman Jim McGovern, the lead sponsor of the People’s Rights Amendment.)
As an initial matter, no one should assume that the 79 percent of Americans who favor a constitutional amendment to reverse Citizens United are “anti-corporate,” whatever that means. After all, 1,000 business leaders have called for a constitutional Amendment, as have legal scholars, lawyers, former state attorneys general, serving attorneys generals, dozens of cities and town representative bodies and millions of Americans.
The argument that corporations in fact are “people” under the Constitution, or at least that we ought to continue the tacit amendment of the Constitution that pretends that they are, at least has the virtue of frankness. Less credible, is the argument that Citizens United and the larger “corporate speech” theory under the First Amendment is not really about corporate rights at all, but merely about protecting associational rights of people.
Professor Greenfield argues that the Supreme Court in Citizens United got “the result” wrong but at least it asked “the right question.” No, the Court got the result wrong because the Court asked the wrong question. The actual question before the Court in Citizens United should have been the question posed by a challenge to the corporate regulation component of the federal Bipartisan Campaign Reform Act (BCRA) – Can Congress create different election spending rules for human beings than for corporations?
The result in Citizens United is a firm “no,” but the Court only got there by a ham-fisted changing of that question into a series of preposterous metaphorical softball questions: Can Congress “ban” speech? Can Congress disfavor some “speakers” or “voices”? Well, those questions have pretty easy answers but that they had nothing to do with the issue before the Court.
Nowhere does Citizens United describe a corporation, an entity created only by the terms of state law. Instead, we are asked to swallow a metaphor soup, to pretend we’re really talking about speakers, voices and a class of persons. Most Americans say, “No thank you,” and it is not because they have, as Professor Greenfield suggests, a “fundamental misunderstanding of constitutional law.”
It is true that many of the proposed amendments to reverse Citizens United challenge an aspect of “constitutional law.” That is, the amendment campaign challenges the “corporate speech” theory that has transformed the First Amendment in recent years. With this transformation, First Amendment speech rights are no longer about a human right of thought and speech but about an abstract “marketplace of ideas.”In this marketplace human and corporate voices are presumed to stand on equal footing, with “listeners” and “consumers” somehow deemed to be the beneficiaries of all this.
What if the metaphors don’t hold? What if a corporation is not a “voice,” a “speaker,” a Fourteenth Amendment “person,” but merely a tool of state policy, or property with certain privileges from the state? “Political speech of corporations?” What does that even mean? Is there such a thing? If so, who decides?
If the Court in Citizens United had approached the challenge to the corporate regulation component of BCRA by focusing on the human beings behind the not-for profit corporation in Citizens United, and still had reached the same conclusion, we would still be debating whether that result meant the human shareholders, executives, or employees of Exxon or Goldman Sachs also suffer any infringement on speech rights if Exxon or Goldman Sachs corporate treasury money could not be used to swing election outcomes. No one debates this, because the emphatic conclusion of Citizens United was quite clear.
If just for a moment, the question in Citizens United and other corporate speech cases is re-phrased to reflect what we usually require in civil rights cases – constitutional injury to human beings – the outcomes seem dubious, to say the least. “Does a corporate or economic regulation (election spending; cigarette advertising; utility corporation rule; FDA off-label marketing rule) violate the speech rights of any human being for which the corporate plaintiff could possibly be a stand-in – CEO, shareholder, employee?” If we looked at it from that perspective, rather than acting as if Philip Morris, Pfizer, Central Hudson, were constitutional persons, most corporate speech cases present far less serious (maybe no serious) First Amendment question. The regulations are not speech restrictions at all, at least not a restriction on the speech of real people.
The more subtle question posed by Citizens United, then, is a question of power. Who decides the rules about how people use corporate entities created by state law? Since the people through our state laws permit corporations to exist in the first place, and decide on the rules for using the corporation, I suppose there might be “corporate speech,” if the people enact corporate laws to define it. But how does that concept become a constitutional question? (Of course, if those laws favor some views but not others, a circumstance completely absent from the federal and state corporate election rules, human speech rights are implicated, as are human property rights if the corporation or its shares are taken by state action.)
Citizens Unitedis a radical and dangerous conclusion to the misguided corporate speech experiment of the past three decades. Its consequences have grave ramifications for republican democracy. And that’s exactly why Article V’s amendment process exists.