The misguided theories behind Citizens United v. FEC.

The law, lawyers, and the court.
Jan. 22 2010 6:03 PM

Money Isn't Speech and Corporations Aren't People

The misguided theories behind the Supreme Court's ruling on campaign finance reform.

(Continued from Page 1)

In Citizens United, Justice Kennedy discusses business corporations as if they were clubs or political associations with political viewpoints and elected leaders. But corporate managers don't function as representatives or employees of shareholders, who have no say, no shared political views, and no expectation that their investments will be used for political ends. In the wake of the court's ruling this week, will some corporations pick a party or politics while others channel unheard of amounts of money to both major parties? Will investors be influenced by a corporation's political portfolio?

The Citizens United decision will make it harder to achieve reforms opposed by major corporations and change business as well as politics. Increasing the constitutional rights of corporations beyond their business purposes is really about increasing the rights and power of corporate managers. Government has enabled corporate managers to control huge accumulations of wealth without any personal risk—an arrangement that contributes to wild, bubble-producing economic swings and collapses. Citizens United invites that arrangement directly into politics and elections.

Both of these theories—that money is speech and that corporations are people—have an easier time than they should in courts and with the public, too, because they are posed as counters to censorship. Many of us, including me, haven't seen a free-speech argument we don't like, at least initially.

Advertisement

But some perspective: We limit speech—when it has nothing to do with wealthy people spending money—in many ways. (It wasn't protected at all until the mid-1930s.) You famously can't shout fire in a theater. You not-so-famously can't break the theater's rules, including rules about speaking, because you don't really have any First Amendment rights in a privately owned theater or at work. The First Amendment limits only government. And even where it is fully protected, free speech has not been absolute; it's subject to regulation when it undermines basic societal interests and functions, like voting and democracy. In the last few decades, the conservative justices dominating the court have also limited speech rights for demonstrators, students, and whistle blowers. They have restricted speech at shopping malls and transit terminals. Taken as a whole, the conservative court's First Amendment jurisprudence has enlarged the speech rights available to wealthy people and corporations and restricted the speech rights available to people of ordinary means and to dissenters.

In a largely unnoticed rewriting of speech law, the conservative justices have applied their theories and doctrines inconsistently and selectively, as they have money-is-speech. Some of the conservatives' recent innovations would seem to validate campaign finance laws. The "secondary effects" doctrine, for example, allows government to restrict speech if government can suggest a general, non-speech-related purpose, even if the real purpose is speech-related. The court ignored this doctrine in Citizens' United and other campaign finance cases—even though campaign finance reform is aimed not at speech itself, but at large amounts of money that skew, corrupt, and undermine elections.

The court's invalidation of campaign finance reforms over the last few decades isn't about censorship or suppressed speakers or viewpoints. At its core, this line of cases is about dominance of the political and electoral system by wealthy people and corporations and about legitimizing a political and electoral system that is unrepresentative, money-driven, corrupt, outmoded, and dysfunctional. Wealthy people and corporate managers shouldn't dominate politics or have more and better speech rights than the rest of us. That seems like an obvious truth. And yet the Supreme Court's recent decisions move us away from it.

David Kairys, a law professor at Temple University, is the author of Philadelphia Freedom, Memoir of a Civil Rights Lawyer.

  Slate Plus
Slate Picks
Dec. 19 2014 4:15 PM What Happened at Slate This Week? Staff writer Lily Hay Newman shares what stories intrigued her at the magazine this week.