Citizens United, A Court Divided: A Madisonian Note

January 26, 2010
Guest Post

Editor's Note: This is the final post in an ACSblog debate on the constitutional rights of corporations between David H. Gans of the Constitutional Accountability Center (CAC) and Michael S. Greve of the American Enterprise Institute for Public Policy Research (AEI). All posts in the debate are here.

By Michael S. Greve, the John G. Searle Scholar at the American Enterprise Institute for Public Policy Research (AEI). Mr. Greve also co-founded the Center for Individual Rights, a public interest law firm.

Nothing in Citizens United dissuades me from my earlier post's position that the corporate "personhood" question is an unhelpful distraction. No one (including the CU majority) contends that corporations are persons that can (let alone must) enjoy all the constitutional rights of natural persons. Conversely, the CU dissent acknowledges that corporations are covered by the First Amendment and that private associations of individuals do not lose their First Amendment rights merely because they are organized in corporate form.

Either way, the question is whether government has sufficiently good and relevant reasons to treat corporations (and unions) more restrictively than individuals. Justice Kennedy's opinion for the Court and Justice Stevens's dissent both devote most of their substantive discussion to that question. Of course, they arrive at very different answers.

It should surprise no one that the reasons for corporate expenditure limits that the Court used to credit-the "anti-distortion," "anti-corruption," and "shareholder protection" rationales-have now been found wanting. (I think Progressives actually saw this coming: the "corporations-aren't-persons-and-so-therefore" argument owes its belated rise to the fear that the conventional arguments would no longer do.) Justice Stevens's snarl that the "only relevant thing that has changed ... is the composition of this Court" may be right in a crass legal-realist sense. It is wrong in substance: over the years, campaign finance law and litigation has taught us, and quite probably some justices, that the game isn't worth the candle. The dissent itself suggests the point, although not in the way its author intends.

When citizens get "the impression that corporations dominate our politics," the dissent bemoans, "they may lose faith" in our democratic institutions and fall into "cynicism and disenchantment" (Dissent, p. 81) There is indeed no shortage of public cynicism-and it has risen in tandem with the volume of campaign finance regulation. Public approval of Congress stood at 40 percent in 1974, when legislation started in earnest. It stood at 24 percent in 2000, when BCRA was enacted. It now stands at 17 percent. Progressives loudly clamor for another round of legislation to respond to Citizens United-perhaps, to test whether public approval can sink below zero.

Similarly, "the energy and ingenuity with which corporations, unions, lobbyists, and politicians may go about scratching each other's backs" (Dissent, p. 57) are largely attributable to-well, to campaign finance law, which has spawned entire industries of bundlers, 527s, 501(c)(pick-your-number)s, and high-priced lawyers navigating the Federal Election Commission's torrent of regulations on 33 different types of political speech. On some planet, this regime might reduce the "appearance of corruption," but not on ours. Especially if one worries about bad appearances, one ought to embrace the majority's holding: allow the money to flow the most direct route, and force disclosure.

Perhaps, campaign finance law lacks even a minimally rational means-ends relation because its defenders confuse cause and effect. We don't really know, Justice Stevens writes, what the Framers would have thought about corporations and campaign finance. Clearly, though, "they would have been appalled by the evidence of corruption" that supposedly warrants the now-invalidated provisions (p. 61). "Appalled" is right.

The Framers, however, viewed the form of "corruption" at issue not simply as a private vice but as a product of bad, "mutable" government. "Public instability," James Madison warned, would give an:

unreasonable advantage to the sagacious, the enterprising, and the moneyed few over the industrious and uninformed mass of the people. Every new regulation concerning commerce or revenue, or in any manner affecting the value of the different species of property, presents a new harvest to those who watch the change, and can trace its consequences; a harvest, reared not by themselves, but by the toils and cares of the great body of their fellow-citizens. This is a state of things in which it may be said with some truth that the laws are made for the few, not for the many. (Federalist No. 62.)

Mutable government begets corruption, which (Madison continues) in turn begets public disaffection: that's a pretty good analysis of and for an age of $3 trillion budgets; a regulatory apparatus that commandeers resources of equal magnitude; $700 billion blank checks to federal agencies; impulse purchases of car and insurance companies; and grand plans to re-arrange today this, tomorrow that, next week the other sector of the American economy. Granted, the relation between rent-seeking (aka corruption) and "mutable government" runs both ways. But the notion that we can and should have more of that government and yet stop the "moneyed few" in their tracks through campaign finance law is oxymoronic. Emphasis not necessarily on "oxy."

Government is not a person; like a corporation, it is an artifact. But "No government, any more than an individual, will long be respected without being truly respectable; nor be truly respectable, without possessing a certain portion of order and stability." If you're worried about corporate corruption, start with that Madisonian thought.